I 


^t;t'v 


A 


University  of  California. 

FROM   THE    LIBRARY   Ol' 

DR.    FRANCIS     LIEBICR, 

Profesior  of  History  and  Law  in  Columbia  Collesre,  New  York. 


THK  GIFT   OF 

MICHAEL    REESE 

Of  Sdfi  FraiicisLO. 
1 S  7  3 . 


A  TREATISE 


MILITAEY    LAW 


PRACTICE  OF  COURTS-MARTIAL. 


CAPT.   S.   V.   BENET, 


ORDXANCE  DEPARTMENT,    U.  S.  ARMY ;    LATE   ASSISTANT  PROFESSOR  OF  ETHIC 
LAW,   ETC.,   MILITARY  ACADEMY,    WEST  POINT. 


KEW    YORK: 
D.    VAN   NOSTKAND,    192   BROADWAY. 

1862. 


Entered  according  to  Act  of  Congress,  in  the  year  1862.  by 

D.  VAN  NOSTRAND, 

In  tl:e  Clerk's  Office  of  he  District  Court  of  the  United  States 
for  the  Southern  District  of  New  York. 


VLVOP.P,  KLECTROTYI-EJ!  ANT)  I'KINTKR. 


PKEFACE. 


"Within  tlie  past  few  years,  more  has  been  done  to  fix  disputed 
and  doubtful  points  in  the  practice  of  our  military  tribunals, 
than  during  any  former  period  in  our  military  history.  For 
this  progressive  movement,  we  are  mainly  indebted  to  the  able 
decisions,  while  reviewing  the  proceedings  of  courts-martial, 
that  have  issued  from  the  War  Department  since  the  establish- 
ment of  the  ofiice  of  Judge  Advocate  of  the  Army  ;  and  to  the 
many  elaborate  opinions  by  the  Attorneys  General,  on  points 
of  law  requiring  legal  interpretation.  These  decisions  and  opin- 
ions, presenting,  as  they  do,  authoritative  information  of  un- 
usual interest  to  the  army  at  large  and  not  generally  accessible, 
first  suggested  the  preparation  of  a  work  in  which  they  might 
be  embodied.  Tlie  suggestion  lost  none  of  its  force,  in  view  of 
the  fact,  that  for  the  instruction  of  the  Cadets  of  the  Military 
Academy  in  the  practice  of  courts-martial,  this  most  essential 
information  was  not  to  be  found  in  their  text-book. 

This  volume  has  been  the  result  of  nnich  careful  investiga- 
tion, and  the  hope  is  entertained  that  it  may  contribute  a  use- 
ful link  in  the  chain  of  our  military  jurisprudence.  To  the 
Judge  Advocate  of  the  Army,  I  am  indebted,  for  furnishing 
me  the  infoi-mation  I  had  occasion  to  seek  in  the  records  of  the 
AVar  Department. 

United  States  Military  Academy, 

West  Point,  N.  Y.,  Jfarch  25th,  1862. 


CONTENTS, 


CHAPTER  I.  PiGK. 

Military  La-^v 'i 

CHAPTER  U. 
Constitution'  and  Comi'Ositiox  of  Courts-Martial IT 

CHAPTER  in. 
Jurisdiction' 2G 

CHAPTER  IV. 
Dlstixctive  Jurisdiction — Offexges  and  Pumsitsiext 37 

CHAPTER  V. 
Arrest  and  Confinement 4G 

CHAPTER  YI. 
Charges  and  Specifications •'i2 

CHAPTER  A'TI. 
Of  the  Court  and  Parties  to  tue  Trial TjO 

CHAPTER  VIII. 
Challenges  and  Oaths 68 

CHAPTER  IX. 
FoRM.vTiON,  Adjournment,  and  Dissolution  of  the  Court 82 

CHAPTER  X. 
Of  the  Trial  and  its  Incidents 88 

CHAPTER  XI. 
The  Finding 12.') 

CHAPTER  XII. 
The  Sentence 137 


6  CONTENTS. 

CHAPTER  XIU.  pa(;e. 

Revision'  and  Confirmation  of  Sentence 146 

CHAPTKR  XIV. 
ExECLTiON  OF  Sentence     166 

CHAPTER  XV. 
lUnuKssiNCr  Wrongs,  and  Appeals 170 

CHAPTER  XVI. 
Courts  of  Inquiry 171) 

CHAPTER  XVII. 
Boards  for  Retiring  Disabled  Officers 186 

CHAPTER  XVIII. 
Of  the  Judge  Advocate 192 

CHAPTER  XIX. 
Remarks  on  Artict.es  of  Var 20.5 

CHAPTER  XX. 
Of  Evidence 224 

APPENDIX. 

Forms  of  Orders 323 

Extracts  from  the  Constitution  of  the  United  i^tates,  and  its  Ajiend- 

MENTS 334 

Articles  of  War 3:;G 

Extracts  fmom  Acts  of  Congrkss 358 

INDEX 365 


MILITARY  LAW  AND  COURTS-MAPJIAL. 


CHAPTER    I. 

MILITARY  LAW. 

Military  i^aAv  is  that  portion  of  tlie  law  of  tlie  land, 
designed  for  tlie  government  of  a  j^articular  class  of 
persons,  and  administered  by  special  tribunals.  It  is 
superinduced  to  the  ordinary  law  for  the  purpose  of 
regulating  the  citizen  in  his  character  of  soldier ;  and 
although  military  offences  are  not  cognizable  under  the 
common  law  jurisdiction  of  the  United  States,  yet  the 
articles  of  war  clearly  recognize  the  suj)eriority  of  the 
civil  over  the  military  authority. 

The  constitution  of  the  L^nited  States  empowers  Con- 
gress "  to  raise  and  support  armies ;  to  provide  and  main- 
tain a  navy,"  and  "  to  make  rules  for  the  government 
and  regulation  of  the  land  and  naval  forces."*  As  an 
essential  pai-t  of  these  powers,  it  belongs  exclusively  to 
Congress  to  ordain  or  provide  for  courts-martial  and  de- 
fine their  jurisdiction ;  to  make  their  sentences  final  and 
conclusive,  or  subject  to  reviewing  authority ;  to  desig- 
nate by  whom  they  shallbe  convened,  and  then  confumed 

*  Art.  1,  section  8. 


8  MILITARY    LAW    AXD    COURTS-MARTIAL. 

or  disapproved ;  and  generally,  to  make  such  statutory 
provision  concerning  them,  as  in  their  ^^dsdom  may  be 
deemed  proper  and  necessary. 

Rules  and  Articles  of  Wstr.  The  Con2;ress  has  exer- 
cised  that  power  in  the  enactment  of  the  law  of  April 
10th,  1806  —  all  previous  rules  and  regulations  being 
declared  "  void  and  of  no  effect."  This  act,  with  some 
slight  legislative  modifications,  constitutes  the  entitle 
code  of  laws  now  in  force  for  the  government  of  the 
armies  of  the  United  States ;  and  by  its  provisions  alone, 
are  courts-martial  made  the  proper  and  sole  tribunals 
for  the  trial  of  military  offences. 

A  court-martial  is  a  lawful  tribunal,  existing  by  the 
same  authority  that  any  other  court  exists  by,  and  the 
law  military  is  a  branch  of  law  as  valid  as  any  other, 
and  it  differs  from  the  general  law  of  the  land  in  author- 
ity only  in  this,  that  it  applies  to  officers  and  soldiers  of 
the  army,  but  not  to  other  members  of  the  body  politic, 
and  that  it  is  limited  to  breaches  of  militarj^  duty.* 

Courts-martial  are  regulated  by  the  articles  of  'icai\ 
the  general  regulations  of  the  army,  and  by  the  orders 
of  the  President  relating  thereto,  and  extant  at  the  time ; 
their  practice  is  moreover  regulated,  in  points  where 
the  ■\^Titten  law  is  silent,  by  the  custom  of  tvar^  by 
which  expression,  as  here  applied,  must  be  understood 
the  customs  and  usages  of  the  United  States  army. 

General  Regulations.  The  act  of  Congress  of  March 
3d,  1813,  enacts,  "that  it  shall  be  the  duty  of  the  sec- 
retary of  the  war  department,  and  he  is  hereby  author- 
ized to  prepare  general  regulations,  <fec.,  <fec.,  which, 
when  approved  T)y  the  President  of  the  United  States, 

*  Grant  vs.  Gould,  ii.  H.  Blacks,  69,  98,  100. 


MILITARY    LAW.  9 

sliall  be  respected  and  obeyed,  until  altered  or  revoked 
by  tlie  same  autliority."  The  act  of  April  24tli,  1816^ 
enacts,  "  that  the  regulations  in  force  before  the  reduc- 
tion of  the  army,*  be  recognized,  as  far  as  the  same 
shall  be  found  applicable  to  the  service ;  subject,  how- 
ever, to  such  alterations  as  the  secretary  of  war  may 
adopt  with  the  approbation  of  the  President."  Under 
this  authority  the  "general  regulations  of  the  army" 
now  in  force  have  legal  effect,  and  so  far  as  concerns  the 
regulating  of  that  body,  for  whose  guidance  they  were 
framed,  have  all  the  binding  force  of  military  law ;  j^ro- 
vided  of  course,  that  they  be  consistent  with  the  con- 
stitution and  the  laws  of  the  United  States. 

The  cadets  of  the  United  States  Military  Academy 
are  also  subject  to  these  general  regulations,  in  whatever 
is  applicable  to  them.  In  addition  to  this,  they  are 
subject  to  special  regulations,  not  only  because  the  secre- 
tary of  war,  under  his  general  power  to  adopt  regula- 
tions, may  make  special  regulations  for  any  branch  of 
the  ser^dce,  but  also  because  the  act  of  April  29th,  1812, 
contemplates  the  estaljlishment  of  specific  regulations 
for  the  Military  Academy.  Under  this  double  author- 
ity it  is  that  the  revised  regulations  issued  by  the  de- 
partment on  the  14th  March,  1853,  now  constitute  the 
governing  code  of  the  academy.f 

Cnstom  of  ^Var.  The  custom  of  war  is  the  lex  non 
scripta^  or  common  laAv  of  the  army,  and  by  the  69th  ar- 
ticle of  war  is  recognized  as  a  guide  in  administering  mil- 
itary justice.  It  can  l)e  considered  as  authority  only 
so  far  as  to  aid  in  removing  any  doubt  that  "  should 
arise  not  explained  by  said  articles,"  and  must  be  an 

*  Approved  March  3d,  1815.         f  Attomey-gcueral's  opinions,  July  lltli,  1855. 


10  MILITARY   LAW   AND    COUETS-MARTIAL. 

established  custom,  the  growth  of  the  service  in  which 
it  is  a])pliecl. 

martial  L.aw.  Martial  law  has  been  often  confounded 
with  rnilitaiy  law,  and  it  is  difficult  to  give,  in  precise 
terms,  its  exact  definition  and  import. 

In  continental  Europe,  as  in  France,  we  find  the  state 
of  siege.  This  may  have  a  lawful  origin,  either  in  an 
act  of  the  political  sovereignty,  or  in  the  necessity  of 
circumstances.  When  it  exists,  the  civil  law  is  sus- 
pended for  the  time  being,  or  at  least  made  subordi- 
nate, and  its  place  is  taken  by  martial  law,  under  the 
supreme,  if  not  the  direct,  administration  of  the  mili- 
taiy  power.  The  state  of  siege  may  exist,  in  a  city  or 
in  a  district  of  country,  either  by  reason  of  the  same 
being  actually  besieged  or  invested  by  a  hostile  force, 
or  by  reason  of  domestic  insurrection.  In  either  case  it 
is  the  precise  fact  we  are  now  considering.  The  state  of 
siege  of  the  continental  jurists,  is  the  proclamation  of 
martial  law  of  England  and  the  United  States — only 
we  are  without  law  on  the  subject,  while  in  other  coun- 
tries it  is  regulated  by  known  limitations.* 

In  a  debate  in  Parliament,  the  Duke  of  Wellington 
contended  that  martial  law  was  neither  more  nor  less 
than  the  will  of  the  gefiieral  who  commands  the  army. 
In  fact,  martial  law  was  no  law  at  all.  Therefore,  the 
general  who  declared  martial  law  and  commanded  that 
it  should  be  earned  into  eflect,  was  bound  to  lay  down 
distinctly  the  rules,  and  regulations,  and  limits,  accord- 
ing to  which  his  will  was  to  be  carried  out.  Now, 
he  had  in  another  countiy,  carried  on  martial  law ;  that 
was  to  say,  he  had  governed  a  large  part  of  the  popu- 

*  Opinions,  February  3d,  1857. 


:militaey  law.  11 

lation  of  a  country  hy  lils  own  will.  He  declared  that 
the  countiy  should  be  governed  according  to  its  own 
national  laws,  and  he  carried  into  execution  that  mil- 
He  governed  the  country  strictly  by  the  laws  of  the 
country,  and  he  governed  it  ^vith  such  moderation,  that 
political  servants  and  judges,  who  had  at  first  fled  or 
had  been  expelled,  afterward  consented  to  act  under 
his  direction.  The  judges  sat  in  the  courts  of  law,  con- 
ducting their  judicial  business,  and  administering  the 
law  by  his  authority.* 

INIartial  law,  as  exercised  in  any  country  by  the  com- 
mander of  a  foreign  army,  is  an  element  of  tlie^'«.9  belli. 
It  is  incidental  to  the  state  of  solemn  war,  and  apper- 
tains to  the  law  of  nations.  The  commander  of  the 
invading,  occupying,  or  conquering  army,  rules  the  in- 
vaded, occupied,  or  conquered  foreign  country,  with  su- 
preme power,  limited  only  by  international  law,  and 
the  orders  of  the  sovereign  or  c^overnment  he  serves  or 
represents.  Such  occupation  by  riglit  of  war,  so  long 
as  it  is  military  only,  that  \^^  jlagrcmte  hello ^  will  be  the 
case  put  by  the  Duke  of  Wellington,  of  all  the  powers 
of  the  government  resumed  in  the  hands  of  the  com- 
mander-in-chief  If  any  local  authority  continue  to  sub- 
sist, it  will  be  \A\\\  his  permission  only,  and  with  power 
to  do  nothing  except  what  ho,  in  his  plenary  discretion, 
or  his  o^vn  sovereign  through  him,  shall  see  fit  to  au- 
thorize.f 

During  the  occupation  of  Mexico  T)y  the  United  States 
army,  the  general-in-chief  declared  martial  law.  After 
stating  in  his  "general  order"  that  the  written  code 
commonly  called  the  rules  and  articles  of  war,  does  not 

*  Hansard,  3d  series.  f  Gushing.     Opinions,  vol.  VIII.,  3G5. 


12  3IILITAKY    LATV    A^^D    COUKTS-MAKTIAL. 

pro-snde  for  the  punisliment  of  certain  crimes,  siicli  as 
assassination,  murder,  poisoning,  rape,  <fec.,  and  is  abso- 
lutely silent  as  to  all  injuries  whicli  may  be  inflicted 
upon  individuals  of  tlie  army,  or  their  property,  against 
the  laws  of  war,  by  individuals  of  a  hostile  country, 
General  Scott  remarks,  that  "a  supplemental  code  is 
absolutely  needed.  That  vnivritteri  code  is  martial  law, 
as  an  addition  to  the  ivritten  military  code,  prescribed 
by  Congress  in  the  rules  and  articles  of  war,  and  which 
unwritten  code  all  armies  in  hostile  countries  are  forced 
to  adopt,  not  only  for  their  own  safety,  but  for  the 
protection  of  the  unoffending  inhabitants  and  their  prop- 
erty, aljout  the  theatres  of  military  operations,  against 
injuries  on  the  part  of  the  army,  contrary  to  the  laws 
of  war.  *  *  *  For  this  purpose,  it  is  ordered,  that 
all  offenders  in  the  matters  aforesaid,  sliall  be  promptly 
seized,  confined,  and  reported  for  trial  before  military 
Gomimismons^  to  be  duly  appointed,  etc." 

These  commissions  were  appointed,  governed  and  lim- 
ited as  nearly  as  practicable,  as  prescribed  for  courts- 
martial  ;  their  proceedings  to  be  recorded,  reviewed, 
revised,  disapproved  or  confirmed,  jmd  their  sentences 
executed,  all  as  near  as  may  be,  as  in  the  cases  of  the  pro- 
ceedings and  sentences  of  courts-martial ;  "  provided  that 
no  military  commission  shall  ti'}'  any  case,  clearly  cogni- 
zable,  by  any  court-martial,  and  provided  also  that  no 
sentence  of  a  military  commission  shall  be  put  in  exe- 
cution against  any  individual  belonging  to  this  army, 
which  may  not  be,  according  to  the  nature  and  degree  of 
the  offence,  as  established  by  evidence,  in  conformity 
with  known  punishments,  in  like  cases,  in  some  one  of 
the  states  of  the  United  States  of  America. 


MILITARY    LAAV.  13 

"  Tlie  administration  of  justice,  hotli  in  civil  and  crim- 
inal matters,  through  the  ordinary  courts  of  the  country, 
shall  nowhere  and  in  no  degree  be  interrupted  by  any 
officer  or  soldier,  except"  in  certain  specified  cases.* 

The  above  was  the  form  of  martial  law  as  declared  in 
the  enemy's  country,  and  to  cease  of  course  when  hos- 
tilities should  cease.  We  must,  however,  clearly  distin- 
guish between  martial  law,  as  a  foreign  or  international 
fact,  and  the  same  thing  as  a  domestic  or  municipal  fact. 

In  Great  Britain^  thougli  the  preamble  of  the  mutiny 
act  specifically  declares  the  illegality  of  martial  law  in 
time  of  peace,  it  evidently  recognizes  the  legality  of  re- 
sorting to  that  expedient  in  time  of  war  and  intestine 
commotion.  The  power  of  the  sovereign,  or  the  represent- 
ative of  majesty,  to  proclaim  martial  law,  lias  been  fully 
set  forth  in  many  statutes,  and  the  acknowledged  pre- 
rogative of  the  crown,  to  resort  to  the  exercise  of  mar- 
tial law  against  open  enemies  or  traitors,  is  expressly 
declared  in  several  earlier  statutes,  and  among  others,  in 
the  more  recent  Irish  disturbance  act  which  expired 
August  1st,  1834.t 

In  the  United  States,  martial  law  is  a  thing  not  men- 
tioned by  name,  and  scarcely  as  much  as  hinted  at,  in 
the  constitution  and  statutes.  The  former  declares  that 
"  the  privilege  of  the  writ  of  habeas  corpus  shall  not  lie 
suspended,  unless  when,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it."  And  the  opinion  is 
expressed  by  the  commentators  on  the  constitution,  that 
the  right  to  suspend  the  \w\i  of  liabeas  corpus,  and  also 

*   General    order,   No.  287.      Iload-quarters  of  the  army,   National  Palace  of 
Mexico,  September  17th,  1847 
f  Simmons'  Courts-Marlial.  p.  15. 


14  MILITARY    LAAV    AND    COUHTSOIAEJTAL. 

tliat  of  judging  when  tlie  exigency  lias  arisen,  lielong 
exclusively  to  Congress.  But  the  rebellion  or  invasion 
may  demand  such  suspension  during  a  i-ecess  of  the 
national  legislature,  and,  by  the  laws  of  war,  the  ex- 
ecutive has  then  the  right  to  assume  the  power  for  the 
public  safety.  The  relation  between  the  proclamation 
of  martial  law  and  the  suspension  of  the  writ  of  hahea-s' 
corpus^  is  extremely  intimate  ;  although  it  is  but  one  of 
its  consequences,  and  by  no  means  the  largest  or  grav- 
est, since,  according  to  every  definition  of  martial  law,  it 
suspends,  for  the  time  being,  all  the  laws  of  the  land, 
and  substitutes  in  their  place  no  law,  that  is,  the  mere 
will  of  the  military  commander. 

Definition.  Martial  law,  then,  is  that  military  rule 
and  authority  which  exists  in  time  of  war,  and  is  con- 
ferred by  the  laws  of  war,  in  relation  to  persons  and 
things  under  and  within  the  scope  of  active  military 
operations  in  carrying  on  the  war,  and  which  extin- 
guishes or  suspends  civil  rights,  and  the  remedies 
founded  upon  them,  for  the  time  being,  so  far  as  it  may 
appear  to  be  necessary  in  order  to  the  full  accomplish- 
ment of  the  purpose  of  the  war,  the  party  who  exercises 
it  being  liable  in  an  action  for  any  aljuse  of  the  author- 
ity thus  conferred.  It  is  the  application  of  military 
government — ^the  government  of  force — to  persons  and 
property  within  the  scope  of  it,  accordiuo-  to  the  laws 
and  usages  of  war,  to  the  exclusion  of  the  municipal 
government,  in  all  resj^ects  where  the  latter  would  im- 
pair the  efficiency  of  military  law  or  military  action." 

How  executed.  In  carrying  on  war  in  a  portion  of 
countiy  occupied  or  threatened  to  be  attacked  by  an 

*  North  American  Review,  October,  ISGl. 


^.IILITAKY    LAW.  15 

enemy,  wlietlier  ^vitliiii  or  without  tlie  territory  of  tlie 
Uuited  States,  crimes  and  military  offences  are  fre- 
quently committed,  wliicli  are  not  triable  or  punishable 
by  courts-martial,  and  which  are  not  within  the  juris- 
diction of  any  existing  civil  courts.  Such  cases,  how- 
ever, must  be  investigated,  and  the  guilty  parties  pun- 
ished. The  good  of  society  and  the  safety  of  the  army, 
imperiously  demand  this.  They  must,  therefore,  be 
taken  cognizance  of  by  the  military  power;  but,  except 
in  cases  of  extreme  urgency,  a  military  commander 
should  not  himself  attem2:)t  to  decide  upon  the  guilt  or 
innocence  of  individuals.  On  the  contrary,  it  is  the 
usage  and  custom  of  war,  among  all  civilized  nations, 
to  refer  such  cases  to  a  duly  constituted  military  tri- 
bunal, composed  of  reliable  officers,  who,  acting  under 
the  solemnity  of  an  oath,  and  the  responsibility  always 
attached  to  a  court  of  record,  Avill  examine  witnesses, 
determine  the  guilt  or  innocence  of  the  parties  accused, 
and  fix  the  punishment.  This  is  usually  done  by  courts- 
martial  ;  but  in  our  country,  these  courts  have  a  very 
limited  jurisdiction,  both  in  regard  to  persons  and 
offences.  Many  classes  of  persons  cannot  be  arraigned 
before  such  courts  ibr  any  offence  whatever,  and  many 
crimes  committed,  even  by  military  officers,  enlisted  men 
or  camp  retainers,  cannot  be  tried  under  the  "  rules 
and  articles  of  war."  Military  commissions  must  be 
resorted  to  for  such  cases,  and  these  commissions  should 
be  ordered  by  the  same  authority,  be  constituted  in  a 
similar  manner,  and  their  proceedings  be  conducted 
according  to  the  same  general  rules  as  courts-martial, 
in  order  to  prevent  abuses  which  might  otherwise  arise. 
Civil  offences  cognizal>le  b}'  civil  courts,  whenever 


16  MILITARY    LAW    AIS^D    COUETS-MARTIAL. 

such  loyal  courts  exist,  will  not  he  tried  by  a  military 
commission.  It  should  therefore  be  stated  in  every 
application  for  a  commission,  whether  or  not  there  is 
any  loyal  civil  court  to  which  the  civil  offence  charged 
can  be  referred  for  trial.  It  must  be  observed,  how- 
ever, that  many  offences  which  in  time  of  peace  are  civil 
offences,  become  in  time  of  war  military  offences,  and 
are  to  be  tried  by  a  military  tribunal,  even  in  places 
where  civil  tribunals  exist.* 

*  G.  O.,  Xo.  1.  Head-quarters,  departmeut  of  Missouri,  January  1st,  1862. 


CHAPTER   II. 

CONSTITUTION  AND  COMPOSITION  OF 
COUETS-MAETIAL. 

I:sr  confoiTaity  witli  tlie  autliority  conveyed  by  the 
rules  aud  articles  of  war,  certain  officers,  therein  specified, 
are  empowered  to  convene  general^  regimental.,  and  gar- 
rison courts-martial;  the  comjoosition  of  the  several 
courts,  wliatever  their  jurisdiction,  being  distinctly  stated 
and  defined. 

Oenerai  Courts-Martial  may  be  appointed  by  any  gen- 
eral officer  commanding  an  army,  or  colonel  commanding 
a  separate  department,^''  and  in  time  of  war  l)y  a  com- 
mander of  a  division  or  separate  brigade.f  This,  of 
course,  includes  the  President  of  the  United  States,  who 
is,  by  the  constitution,  the  commander-in-chief  of  the 
army  and  na\"}",  and,  therefore,  the  first  general  of  the 
confederacy ;  though  this  power  is  first  given  to  him 
in  terms  by  the  act  of  May  29th,  1830,  in  the  case 
when  a  general  officer  commanding  an  army,  or  a  col- 
onel commanding  a  separate  department,  shall  be  the 
accuser  or  j^i'osecutor  of  any  officer  of  the  army  of  the 
United  States  under  his  command.  "When  the  division 
or  brigade  connnander  shall  be  the  accuser  or  prosecutor, 
the  court  shall  be  appointed  by  the  next  higher  com- 
mander. 

*  65th  article  of  war.  \  Act  approved  Dec.  24th,  1861. 

2 


18  MILITARY    LAW   AND    COURTS-MAETIAL. 

Regimental  Coiirt$i-:n[artiai  maybe  ap2:)ninted  by  every 
officer  commanding  a  regiment  or  coi'ps ;  and  Garri§on 
Courts-:»iartiai  l:)y  all  officers  commanding  any  of  the 
garrisons,  forts,  barracks,  or  otlier  places  where  the 
troops  consist  of  diiferent  corps.'^ 

The  ^VarraiBt  for  the  asseml)ling  of  a  court-martial  is 
issued  in  the  form  of  an  order,  by  the  officer  specially 
empowered  by  the  law.  The  English  "  Mutiny  Act," 
from  which  our  articles  of  war  are  mainly  derived,  pro- 
vides for  the  delegation  of  this  power  to  inferiors,  by 
those  who  have  the  right  of  appointing  courts-martial, 
but  as  no  such  power  is  authorized  l)y  oiu'  laws,  the 
practice  formerly  in  vogue  has  been  very  properly  pro- 
hibited. And,  indeed,  the  practical  operation  of  the 
acts,  above  cited,  of  May  29th,  1830,  and  December  24th, 
1861,  would  prove  of  no  effect  were  such  a  course  of  pro- 
cedure reco2:nized.  It  has  therefore  been  decided  that 
he  alone,  to  whom  the  law  has  given  the  authority  to 
act  in  such  cases,  must  appoint  the  court;  and  that  no 
right  to  delegate  such  authority  can  be  exercised  ^\'ithout 
the  express  sanction  of  law.f 

A  general  court-martial  having  expressed  a  doubt  as 
to  the  regular  it  u  of  the  order  by  which  it  was  convened, 
on  the  ground  that  the  secretary  of  war  was  not  com- 
petent to  render  such  an  order,  the  question  was  duly 
considered  by  the  secretary  and  president,  and  the  result 
was,  that  the}^  entertained  no  doubt  of  the  j^erfect  regu- 
larity of  the  order.  Their  decision  enil)odied  the  fol- 
lowino-  considerations :  Althous-h  the  President  cannot 
delegate  his  powers,  he  need  not  in  all  cases  exercise 
them  in  proper  person.     In  the  language  of  Mr.  Wirt, 

*  GGtli  article  of  war.  \  Captain  lIcK's.  case,  August,  1845. 


CONSTITUTION    OF    COURTS- JIARTIAL.  19 

attorney-general  (opinion  July  Gtli,  1820) :  "The  orders 
issued  hj  the  heads  of  departments  are,  in  contemplation 
of  law,  not  their  orders,  but  the  orders  of  the  President 
of  the  United  States,  and  it  is  as  manifest  a  breach  of 
military  subordination  to  dispute  the  orders  of  the  heads 
of  these  departments,  as  if  they  j^roceeded  from  the  Pres- 
ident in  person."  In  the  case  of  the  United  States  vs. 
Eliason,  the  Supreme  Court  say :  "  The  secretary  of  war 
is  the  regular  constitutional  organ  of  the  President  for 
the  administration  of  the  military  department  of  the  na- 
tion, and  rules  and  orders  2:)ublicly  promulgated  through 
him,  must  be  received  as  the  acts  of  the  executive,  and 
as  such  be  binding  on  all  within  the  sphere  of  his  legal 
and  constitutional  authority,"  and  iji  the  case  of  Wilcox 
vs.  Jackson,  the  Supreme  Court  say :  "  We  consider  the 
act  of  the  war  department  as  being,  in  legal  contempla- 
tion, the  act  of  the  President." 

The  practice  of  the  heads  of  departments  conforms 
to  this  theory.  They  daily  issue  in  their  names,  orders 
emanating  from  the  President,  and  although  it  is  some- 
times stated  in  the  order  itself,  that  it  is  issued  by 
direction  of  the  President,  this  is  not  always  done,  and 
when  it  is  not,  the  fact  is  presumed.* 

€oiiiini<>!>iione<i  Officers.  It  is  prescribed  1)y  the  law 
that  courts-martial  must  be  composed  exclusively  of 
"  commissioned  officers."f 

C7uqjlain-s;  Surgeons,  etc.  In  interpreting  the  words 
"  commissioned  officers,"  as  applicable  to  persons  eligi- 
ble as  members  of  courts-martial,  it  has  ])een  the  custom 
of  service  to  exclude  from  that  class,  all  surgeons,  as- 
sistant-surgeons, and  paymasters,  and  indeed  every  one 

*  TTar  department,  Oft.  nOth,  1S50.  f  C4th  and  GGth  articles  of  war. 


20  MILITARY    LAW    AKD    C0UET5-MAETIAL. 

wlio  is  not  clothed  with  military  rank  proper,  and  hav- 
ing thereby  an  inherent  right  of  command.  This  is 
thought  to  be  in  strict  consonance  mth  the  purposes 
intended  by  law.  It  would  certainly  seem  somewhat 
anomalous  to  institute  a  court  for  the  trial  of  military 
offences,  and  appoint  as  judges,  persons  who,  from  their 
duties  in  connection  with  the  army,  from  their  previous 
pursuits  and  education,  and  the  manner  in  which  they 
are  introduced  into  the  service,  can  have  but  a  very  lim- 
ited knowledge  and  doubtful  views  of  military  conduct.* 

Simmonsf  states  that  instances  may  be  quoted  where 
paymasters  and  also  surgeons  and  assistant-surgeons 
have  been  required  to  perform  this  duty ;  but  the  custom 
and  convenience  of  the  service  forbid  recourse  being 
had  to  these  staff-officers  except  in  urgent  circumstances, 
notwithstanding  that,  in  the  performance  of  theii'  duties 
these  officers  l^ecome  acquainted  with  the  rules  that 
apply  to  military  subordination  and  discipline. 

In  our  service  this  question  has,  however,  been  set 
at  rest  by  the  opinion  of  Hon.  J.  McP.  Berrien,  attor- 
ney-general, of  November  6th,  1829,  given  in  answer 
to  the  query:  "Whether  chaplains^  surgeons^  or  pur- 
sers^  who  are  regarded  on  board  our  ships  as  non-com- 
batants, are  competent  to  officiate  as  membei'S  of  a  na- 
val court-martial  ?"  He  says :  "  If  we  look  to  the  origin 
of  courts-martial  in  England  (from  whence  we  borrow 
them),  it  would  be  difficult  to  believe  that  a  tribunal 
which  has  succeeded  there  to  the  ancient  coui-t  of  chiv- 
alry, could  be  composed  of  other  than  military  men. 
And  if  we  consider  the  nature  of  the  subjects  which 
are  generally  submitted  to  the  decision  of  these  tribu- 

*  Do  Hart,  p.  38.  t  P-  8- 


CONSTITUTION    OF    COUETS-MARTIAL.  21 

nals,  the  knowledge  of  militcaiy  discipline  and  usage,  and 
frequently  of  tactics  (wliicli  is  indispensable  to  those 
who  2:)reside  there),  it  would  seem  that  non-comhatants, 
whose  duties  do  not  lead  them  to  acquire  this  species 
of  information  and  who  have  no  rank,  either  real  or 
assimilated,  could  not  be  deemed  competent  to  sit  on 
courts-martial." 

The  question  was  at  one  time  discussed,  whether  grad- 
%iated  cadets  with  the  brevet  rank  of  second  lieuten- 
ants, and  attached  as  supernumerary  officers  to  corps  of 
the  arm}',  were  "  commissioned  officers  "  within  the  mean- 
ing of  the  articles  of  war  that  prescribe  such  as  the  only 
persons  eligible  to  sit  as  members  of  courts-martial. 
The  opinion  of  Mr.  Attorney-General  Berrien,  of  Au- 
gust 17th,  1829,  ruled  that  they  were  not  such  commis- 
sioned officers.  This  opinion  was  never  fully  acquiesced 
in,  and  the  subject  was  su])sequently  settled  by  orders 
from  the  war  department  in  the  following  words: 
"  Under  this  act  (April  29th,  1812),  the  President  is  not 
required  either  to  commission  such  graduate  when  there 
is  a  vacancy,  or  to  attach  him  as  a  supernumerary  offi- 
cer by  brevet  of  the  lowest  grade  when  there  is  no  va- 
cancy, but  he  may  do  so  at  his  discretion,  and  having 
exercised  that  discretion,  such  graduate,  so  commis- 
sioned and  attached,  becomes  an  officer  of  tlie  lowest 
grade  in  the  corps,  and  is  entitled  to  all  consideration 
as  a  commissioned  officer."* 

In  July,  1855,  this  question  again  became  the  sub- 
ject of  official  interpretation,  and  Mr.  Attorney-General 
Cushing's  opinion  upheld  the  above  decision  as  follows : 
"  He  is  designated  by  '  brevet  of  the  lowest  grade  as 

♦General  order  No.  11,  April  15th,  1845. 


22  MILITARY    LAW    AND    COURTS-MARTIAL. 

a  supernumerary  officer.'  WLat  in  fact  tlius  happens  ? 
It  is,  tliat  lie  is  appointed  '  brevet  second  lieutenant,' 
with  the  pay  and  emoluments  of  that  grade — and  al- 
though the  statute  does  not  here  say  it,  yet  the  general 
law  says,  Avith  the  military  j^ower  of  a  second  lieuten- 
ant, for  service  in  garrison,  camji,  or  field,  and  also  with 
the  rights  and  privileges  of  a  second  lieutenant.  But 
is  he  a  '  commissioned  officer  V  I  say,  yes :  commis- 
sioned with  a  brevet  commission,  to  be  sure ;  but  still 
commissioned  as  an  officer  upon  nomination  to  and 
confirmation  by  the  Senate.  *  *  *  On  these  consid- 
erations, it  seems  to  me  indubitable,  that  a  cadet  with 
brevet  of  second  lieutenant  is  a  commissioned  officer; 
that  he  can  be  tried  as  a  commissioned  officer;  and  that 
he  is  legally  capable  as  a  commissioned  officer  to  try." 

Whenever  it  may  be  found  convenient  and  necessary 
to  the  public  service,  it  is  provided,  that  the  officers  of 
the  marines  shall  be  associated  with  the  officers  of  the 
land  forces,  for  the  purpose  of  holding  courts-martial, 
and  trying  offenders  belonging  to  either.  "  It  is  also 
provided,  that  the  officers  and  soldiers  of  any  troops, 
whether  militia  or  others,  being  mustered  and  in  pay 
of  the  United  States,  shall,  when  joined,  or  acting  in 
conjunction  with  the  regular  forces  of  the  United  States, 
be  governed  by  these  rules  and  articles  of  war,  and 
shall  be  subject  to  be  tried  by  courts-martial;  but  such 
courts-martial  shall  be  composed  entirely  of  militia  offi- 
cers.f 

Number  of  iTienibers.  The  64th  article  of  war  enacts 
that  general  courts-martial  may  consist  of  any  number 

*  G8th  article  of  war. 

f  97th  article  of  war,  and  act  approved  July  29th,  1861,  section  5. 


CONSTITUTION    OF    COURTS-MARTIAL,  23 

of  commissioned  officers,  from  five  to  tliirteeii,  inclu- 
sively; but  they  shall  not  consist  of  less  than  thirteen 
where  that  number  can  be  convened  without  manifest 
injury  to  the  service. 

A  question  has  been  raised  whether  a  general  court 
of  less  titan  thirteen  memhers  is  a  legal  court,  in  case 
that  number  could  have  been  convened  without  manifest 
injury  to  the  service.  It  may  be  difficult  to  conceive  an 
emergency  in  time  of  peace,  so  pressing,  as  to  disable 
the  general  officer  ordering  the  court  from  convening 
thirteen  commissioned  officers  loitliout  manifest  injury 
to  tlie  service.  And  if  a  smaller  number  act  mthout 
such  manifest  emergency,  they  are  not  a  la^vful  court, 
and  an  execution  under  their  sentence  would  be  mur- 
der.* And  yet  this  law  makes  provision  as  to  the  num- 
l^er  of  officers  to  be  ordered  on  a  general  court-martial, 
l)ut  none  as  to  the  number  who  must  actually  attend 
and  participate  in  its  proceedings  beyond  a  fixed  mini- 
mum. No  law  or  regulation  requires  all  the  members 
of  the  court  who  participated  in  its  original  proceed- 
ings, to  continue  present  until  the  time  of  their  con- 
clusion. Objections  to  competency  may  diminish  the 
original  number.  So  may  sickness,  death,  or  the  same 
exigencies  of  the  service,  which  authorize  the  original 
appointment  of  a  number  less  than  thirteen.  Still  it  is  , 
a  lawful  court. f  The  article  indubitably  grants  to  the 
appointing  power  the  exercise  of  a  wise  discretion,  and 
nothing  short  of  clear  and  indisputable  evidence  of  a 
wilfully  corrupt  intention  could  invalidate  his  act.  The 
law  was  made  sufficiently  flexible  to  conform,  as  near 

*  "Wirt's  opinion,  August  29th,  1819. 

\  Attorney-general's  opinions,  July  12th,  1855. 


24  MILITARY    LAW    AND    COUETS-MAKTIAL. 

as  possible,  to  the  constantly  varied  necessities  of  the 
service,  and  not  intended  by  its  rigid  exercise  to  make 
the  public  good  subservient  to  individual  interest. 

The  interpretation  of  the  law,  l)y  the  highest  legal 
and  judicial  authority,  is  expressed  in  the  opinion  of 
Justice  Story  of  the  Supreme  Court,  in  the  case  of 
Martin  vs.  Mott,  when  it  was  decided  that  "  the  dii'ec- 
tion  contained  in  the  act  of  1806,  that  a  o:eneral  court- 
martial  'shall  not  consist  of  less  than  thirteen,  when 
that  number  can  be  convened  without  manifest  injury 
to  the  service,'  is  merely  directory  of  the  officer  appoint- 
ing the  court ;  and  his  decision  as  to  whether  that  num- 
ber can  be  convened  without  manifest  injury  to  the 
service,  being  in  a  matter  subjected  to  his  sound  discre- 
tion, must  be  conclusive."^ 

When  in  the  opinion  of  the  proper  authority,  the  cu'- 
cumstances  of  the  case  demand  a  full  court,  or  one 
composed  of  the  maximum  number  of  thirteen  to  pass 
judgment,  it  is  the  custom  to  name  supernumerary 
officers  who  can  replace  absent  regular  members,  or 
vacated  seats,  during  any  stage  of  the  proceedings,  in 
order  to  prevent  delays  and  the  repetition  of  labor — 
as  also  any  interruption  in  the  course  of  the  trial. 

When  the  numher  of  members  to  form  the  court  is 
not  specified^  the  court  is  fully  competent  to  proceed, 
provided  it  does  not  fall  below  the  minimum  fixed  by 
law. 

Rcsfimcntai  courts-:nartiai  are  to  consist  of  three  com- 
missioned officers,  to  be  appointed  for  his  own  regiment 
or  corps  by  every  officer  commanding  the  same.f 

Garrison  Couris-:ilitrtial  are  to  consist  of  three  com- 

*  12  "Wheaton,  34,  35.  f  6Gth  article  of  war. 


CONSTITUTION    OF    COURTS-MARTIAL.  25 

missioned  officers,  to  be  assembled  by  all  officers  com- 
manding any  of  tlie  garrisons,  tfec,  where  the  troops 
consist  of  different  corps.'^ 

Presidcsit  of  «iic  Court.  It  was  formerly  tlie  practice 
(and  is  still  so,  by  law,  in  the  British  service),  in  the 
order  convening  a  court-martial,  to  name  the  senior  in 
the  detail  as  the  president  of  the  court,  but  this  was 
found  not  at  all  necessary,  as  the  officer  highest  in  rank 
has  the  right  to  preside.f  Besides,  if  the  president  be 
specially  named  in  the  warrant,  and  his  attendance  be 
prevented  by  accident,  or  by  challenge  of  the  accused, 
the  court  cannot  proceed  until  the  officer  ordering  the 
court  supplies  his  place ;  a  necessity  which,  in  the  scat- 
tered condition  of  our  troops  on  the  frontier,  would  lead 
to  serious  and  inconvenient  delays.  As  om-  laws  make 
no  mention  of  such  a  functionary,  and  the  practice  has 
proved  an  evil,  the  custom  of  appointing  a  president  to 
a  court  has  been  discontinued — the  senior  member  pres- 
ent, l)y  virtue  of  his  rank  being  the  presiding  officer. 

Rank  of  iTicmbers.  The  75th  article  states  that  no 
officer  shall  be  tried  by  officers  of  an  inferior  rank, 
if  it  can  be  avoided.  This  is  the  only  limitation  as  to 
degree  of  rank  necessary  in  constituting  a  court-martial, 
and,  equally  ^\dth  the  number  to  be  convened,  is  discre- 
tionary with  the  appointing  power. 

*  GGth  article  of  war.  f  Gist  article  of  war. 


CHAPTER  III. 
JUKISDICTION. 

The  riglit  of  personal  security,  is  guarded  by  provis- 
ions whicli  have  been  transcribed  into  the  constitutions 
in  this  country  from  Magna  Charta,  and  other  funda- 
mental acts  of  the  English  Parliament ;  and  it  is  en- 
forced by  additional  and  more  precise  injunctions.* 
The  substance  of  these  provisions  is  to  be  found  in  the 
fifth  and  sixth  amendments  of  the  constitution.  By  the 
fifth  amendment  it  is  declared  that  "  no  person  shall  be 
held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia  when  in  actual  service  in  time  of  war 
or  public  danger;  nor  shall  any  person  be  subject  for 
the  same  offence  to  be  twice  put  in  jeopardy  of  life  or 
limb ;  nor  shall  he  be  compelled,  in  any  criminal  case, 
to  be  a  witness  against  himself,  nor  be  deprived  of  life, 
liberty,  or  property,  Avithout  due  process  of  law." 

The  constitution,  therefore,  while  expressly  empow- 
ering Congress  "  to  make  rules  for  the  government  of 
the  land  and  naval  forces,"f  expressly  excepts  the  trial 
of  cases  arising  in  the  land  or  naval  service  from  the 
ordinary  provisions  of  law. 

Together  ^\'ith  this  exception,  courts-martial  are  more- 

*  1  Kent's  Commentary,  p.  618.  f  Article  1,  section  8. 


JTJKISDICTION.  21 

over  restricted  to  tlie  cognizance  of  offences  declared 
by,  or  under,  the  powers  of  tlie  act  of  1806,  the  general 
regulations  of  the  army  and  the  custom  of  war ;  com- 
mitted within  the  limits  of  time  therein  specified  by  per- 
sons su])ject  to  military  law;  the  penalties  depending 
on  the  rank  of  the  individual  by  whom  offences  may  be 
committed,  and  varying  also  according  to  the  powers  of 
the  court  by  which  they  may  be  adjudicated. 

Accordingly,  no  doubt  is  intimated  in  any  of  the 
books  of  our  law  as  to  the  competency  and  completeness 
of  the  jurisdiction  of  courts-martial  in  the  cases  and 
under  the  conditions  provided  by  articles  of  war.  (Serg. 
on  const.,  p.  130.)  And  in  the  great  case  of  Moore  vs. 
Houston  (1  Wheaton,  p.  1),  where  a  majority  of  the 
judges  maintained  the  validity  of  proceedings  l>y  courts- 
martial,  esta1  )lished  by  the  states,  applicable  to  the  mili- 
tia, the  reasoning  of  all  the  judges,  on  both  sides  of  the 
question,  is  conclusive  as  to  the  completeness  of  the 
jurisdiction  of  courts-martial  under  the  authority  of  the 
United  States. 

In  the  different  states  the  constitutionality  of  the 
jurisdiction  of  courts-martial  has  been  affirmed,  dii'ectly 
or  indirectly,  beyond  all  controversy  or  cavil.  (See 
Ra^vson  vs.  Brown,  6  Shepley,  p.  216  ;  Brent  vs.  Bogar- 
dus,  7  Johns.,  p.  157.") 

It  is  enacted  by  the  88th  article  of  war,  that  no  per- 
son shall  be  liable  to  be  tried  and  punished  by  a  gen- 
eral court-martial,  for  any  offence  which  shall  appear  to 
have  been  committed  more  than  two  years  before  the 
issuing  of  the  orders  for  such  trial,  <fec.  Sul)ject  to  this 
limitation  of  time,  tlie  jurisdiction  of  courts-martial  ex- 

*  Altoruey-gencral's  opinion,  April  7tli,  1854. 


28  MILITARY    LAW    AND    COURTS-ilAETIAL. 

tends  to  every  case  where  charges  are  exhibited  against 
persons  to  whom  the  provisions  of  the  articles  of  war 
are  applical^le. 

By  virtue  of  the  1st  article  of  war  all  commissioned 
officers,  and  of  the  10th  article,  all  enlisted  men  in  the 
army  are  subject  to  the  rules  and  articles  of  war. 

The  96th  article  declares  that  "  all  officers,  conduc- 
tors, gunners,  matrosses,  drivers,  or  other  persons  what- 
soever, receiving  pay  or  hire  in  the  service  of  the  artil- 
lery or  corps  of  engineers  of  the  United  States,  shall  be 
governed  by  the  aforesaid  rules  and  articles,  and  shall 
be  subject  to  be  tried  by  courts-martial,  in  like  manner 
with  the  officers  and  soldiers  of  the  other  troojDs  in  the 
service  of  the  United  States."  This  article  is  very  gen- 
eral in  its  application.  It  matters  not  whether  the  per- 
son be  enlisted  or  not,  nor  what  kind  of  service  he  may 
perform,  provided  he  receives ^;<:/?/  or  hire  in  the  service 
of  the  artillery  or  engineers,  he  at  once  becomes  amen- 
able to  the  rules  and  articles  of  war.  It  is  by  virtue 
of  this  article,  as  shown  by  Mr.  Attorney-General  Wirt, 
August  21st,  1819,  that  the  professors  and  cadets  at 
the  Military  Academy  are  subject  to  these  rules  and 
articles,  coming  as  they  do  under  the  designation  of 
"  other  persons  whatsoever  receiving  pay  in  the  service 
of  the  corps  of  engineers." 

The  97th  article  also  declares  that  "  the  officers  and 
soldiers  of  any  troops,  whether  militia  or  others,  being 
mustered  and  in  pay  of  the  United  States,  shall  *  *  * 
be  governed  by  these  rules  and  articles  of  war,  and  shall 
be  subject  to  be  tried  by  courts-martial,  &c." 

Besides  these,  all  the  laws,  with  few  exceptions,  if 
any,  creating  or  reorganizing  the  different  corps  of  the 


JURISDICTIOIS".  29 

army,  contain  express  provisions  subjecting  the  mem- 
bers thereof  to  the  rules  and  articles  of  war. 

"Art.  60.  All  sutlers  and  retainers  of  the  camp,  and 
all  persons  whatsoever,  serving  with  the  armies  of  the 
United  States  in  the  field,  though  not  enlisted  soldiers, 
are  to  be  sul^ject  to  orders,  according  to  the  rules  and 
discipline  of  war."  This  description  of  persons,  though 
neither  enlisted  nor  in  pay,  have  ever  been  sul^ject  to 
orders  according  to  the  rules  and  discipline  of  war,  and 
whether  temporarily  or  permanently  attached  to,  or  mo- 
mentarily and  accidentally  connected  with,  an  army  in 
the  field,  or  on  the  line  of  march,  are  liable,  by  order  of 
the  commander,  to  trial  by  coui't-martial  for  any  breach 
of  good  order,  whether  as  afi*ecting  the  discipline  of  the 
army,  or  the  private  rights  of  individuals.  The  custom 
which  prevails  in  the  field  of  thus  trying  persons  not 
connected  with  the  army,  must  have  arisen  from,  as  it 
depends  on,  necessity;'^  and  numerous  instances  might 
be  cited  where  courts-martial  have  exercised  their  pow- 
ers over  camp-followers  of  all  descriptions.  The  neces- 
sity now  spoken  of  gave  origin  to  the  law,  })y  w^hich 
the  rights  on  one  side,  and  the  obligations  on  the  other, 
were  delegated  and  imposed.f 

Sutlers  are  persons  regularly  authorized  by  the  war 
department,  to  sell  provisions,  merchandise,  <fec.,  to 
troops,  subject  to  certain  regulations  and  restrictions. 

Retainers  to  the  €ainp  are  those  who  are  connected 
with  the  military  service  by  pay  or  fee,  such  as  clerks, 
drivers,  guides,  &c. 

Persons  Serving  with  the  Armies  include  all  W'ho  derive 
their  compensation  fi-om  private  sources,  as  servants,  tfec. 

*  Simmons,  p.  3-4.  f  Do  Hart,  p.  24. 


30  MILITARY    LAW    AXD    COURTS-MARTIAL. 

These  various  descri2:)tioiis  of  persons  enjoy  certain 
privileges  in  consideration  of  tlie  advantages,  conve- 
nience, &c.,  which  they  offer  to  soldiers,  and  entering  as 
they  do,  by  their  own  voluntary  act,  into  a  new  society 
having  peculiar  laws  of  its  own,  they  must  conform  to 
those  laws  or  suffer  the  penalty  attached  to  their  in- 
fringement. 

Spies,  &c.  Besides  the  persons  included  in  the  arti- 
cles above  cited,  there  are  others  who,  for  particular 
offences,  may  be  tried  by  militaiy  courts  though  they 
should  not  in  any  way  be  attached  to  the  army.  This 
is  the  case  with  persons  not  owing  allegiance  to  the 
United  States,  who  shall  be  found  lurking  as  62Jie'S,  and 
also  w^itli  any  persons  who  shall  relieve  the  enemy  with 
money,  victuals,  or  ammunition,  or  shall  knowingly  har- 
hor  or  protect  an  enemy,  or  shall  liold  correspondence 
w4th,  or  give  intelligence  to,  the  enemy,  either  directly 
or  indirectly.''^ 

Contempts  of  Court.  Article  76.  This  article  gives  a 
court-martial  summary  power  to  punish  at  its  discretion, 
any  person  "whatsoever"  who  "shall  use  any  menacing 
words,  signs,  or  gestures,  in  presence  of  a  court-martial, 
or  shall  cause  any  disorder  or  riot,  or  disturb  their  pro- 
ceedings." 

It  must,  however,  be  remarked,  that  no  contempts  are 
thus  subjected  to  a  summary  punishment,  except  such 
only  as  are  of  an  aggravated  and  self-evident  nature, 
which  being  committed  in  the  presence  of  the  court,  do 
not  need  to  be  substantiated  by  any  other  evidence,  and 
not  l)eing  dependent  on  any  constructive  interpretation  of 
the  law,  do  not  require  more  protracted  investigation.f 

*Sec.  2  and  articles.  5G  and  57.  f  Simmons,  p.  156. 


JURISDICTION".  31 

Under  the  authority  of  the  above-quoted  article, 
courts-martial  are,  undoubtedly,  fully  empowered  to  pro- 
ceed against  military  persons.  The  words  of  the  article 
— "the  said  court" — are  express,  and  the  custom  of  ser- 
vice is  an  authority  for  the  summary  award  of  punish- 
ment by  the  court  (that  is,  the  same  court,  and  not 
exposed  to  change  by  the  allowance  of  challenges), 
whose  proceedings  may  be  interrupted.  Judgment  can 
be  passed  upon  the  accused  without  all  the  previous 
forms  of  trial,  but  the  court  must  be  sworn  and  a  dis- 
tinct charge  made  out — the  accused  being  permitted  to 
appear  and  make  such  explanations  as  he  may  desire. 

In  the  enforcement  of  the  article  under  consideration, 
courts-martial  have  the  power  to  arrest  the  guilty  party, 
and  if  an  officer,  even  should  he  be  superior  in  rank 
to  all  the  members  of  the  court. 

A  general  court-martial  is  by  law  the  highest  judi- 
cial body  known  to  the  military  service,  and  its  jurisdic- 
tion is  not  made  dependent  on  the  rank  of  its  members, 
but  is  co-extensive  with  the  trial  of  all  crimes,  and  all 
persons  subject  to  military  law.  But  regii^ental  and 
garrison  courts-martial,  fi'om  tlieir  constitution,  are  not, 
in  similar  cases,  competent  to  award  any  punishment  to 
commissioned  officei-s.  Under  such  circumstances,  these 
minor  courts  would  only  have  power  to  arrest  an  of- 
ficer, whatever  his  rank,  and  report  the  same  with  the 
cause  of  the  arrest  to  the  proper  authority. 

In  the  case  of  civilians^  the  Britisli  courts-martial  are 
not  required  to  award  summary  punishment,  nor  have 
they  the  power  of  ordering  into  arrest ;  but  they  may 
direct  the  removal,  by  force,  of  any  person  who  may 
obstruct  their   proceedings,  in  order  that  he  may  be 


32  MILITARY   LAW    AND    COURTS-MARTIAL. 

"  taken  before  the  civil  magistrate  to  be  punished  ac- 
cording to  law."  Our  article  embraces  by  its  terms  all 
persons  "  ivhatsoever^^''  and  clearly  includes  persons  not 
belonging  to  the  military  profession ;  and  as  the  law 
proceeds  directly  fi'om  the  supreme  legislative  power  of 
the  country,  it  should  have,  equally  ^\'ith  all  law,  inherent 
in  itself,  competent  authority  to  secure  its  administra- 
tion from  disobedience  and  contempt.  A  power,  there- 
fore, in  the  supreme  courts  of  justice  to  suppress  such 
contempts  by  an  immediate  attachment  of  the  offender, 
results  from  the  first  principles  of  judicial  establish- 
ments, and  must  be  an  inseparable  attendant  upon 
every  superior  tribunal. ""  As,  however,  com-ts-martial 
have  no  appointed  means  of  enforcing  their  mandates 
against  civilians,  suj^posing  the  existence  of  a  power  to 
make  such  mandates,  a  procedure  against  them  would 
be  vain  and  nugatory ;  and  yet  disturbances  of  the  pro- 
ceedings of  courts-martial  should  not  pass  unnoticed. 
Where  the  court  sits  Avithiu  the  limits  of  a  garrison,  or 
territory  subject  to  military  jurisdiction,  the  court  can 
cause  the  offender  to  be  ejected  from  its  presence  and 
put  beyond  the  military  limits.  And  when  the  court 
holds  its  sessions  in  towns  or  at  j^laces  not  knowTi  as 
military  posts,  such  persons  may  likewise  be  put  out  of 
the  presence  of  the  court ;  and  should  fm'ther  distm'- 
bance  be  made  or  attemj^ted  from  the  outside  of  the 
court-room,  the  civil  authorities  may  be  appealed  to,  to 
proceed  against  the  offenders  for  a  breach  of  the  peace.f 
Court-Martial  Jurisdiction  after  tlic  Expiration  of  Term 
of  Service.  The  question — Can  a  court-martial  exercise 
jurisdiction  over  a  soldier  after  the  ex2:)iration  of  the  term 

*  4  Black.  Com.,  p.  285.  f  Do  Hart,  p.  108. 


JURISDICTION.  33 

of  Ills  enlistment,  for  an  oifence  committed  prior  to  sucli 
period^— lias  been  frequently  made  the  siil)ject  of  dis- 
cussion, and  as  yet  no  decision  lias  been  had  from  courts- 
martial  or  other  competent  military  authority.  The 
articles  of  war  set  no  limit,  as  to  time,  to  the  jurisdic- 
tion of  courts-martial,  other  than  that  declared  l)y  the 
88tli  article.  The  soldier  voluntarily  makes  an  engage- 
ment with  the  government,  in  his  enlistment,  rendered 
sacred  by  the  solemnity  of  an  oath,  "to  observe  and 
oheip  the  orders  of  the  President  of  the  United  States, 
and  the  orders  of  the  officers  appointed  over  him,  "  accord- 
ing to  the  rules  and  articles  for  the  government  of  the 
armies  of  the  United  States."  This  compact  is  equally 
l)inding  on  both  parties,  and  can  only  be  dissolved  as 
j^rescribed  by  these /' rules  and  articles."  Punishments 
are  there  ordered  to  be  inflicted  for  violations  of  the 
terms  of  the  compact,  and  the  mere  exj)iratioii  of  the  term 
of  service  should  hardly  release  either  party  from  the 
faithful  performance  of  his  share  thereof  If  the  soldier 
has  \dolated  any  of  the  articles  which  he  swore  to  ob- 
serve and  obey,  strict  justice  demands  that  he  should  be 
put  square  upon  the  record  by  suffering  the  punish- 
ment awarded  for  such  an  offence.  Besides,  the  general 
princi})le  of  law  is,  that  whenever  any  act  is  prohibited 
under  a  penalty,  and  no  limitation  affixed  to  a  prosecu- 
tion, the  offender  is  amenable  at  any  time  during  his 
life.  If  as  a  soldier  he  l)e  subject  to  trial  by  court-mar- 
tial for  an  offence  committed  while  wearing  the  mili- 
tary character  and  subject  to  military  law,  the  mere 
throwing  off  this  military  character  and  assuming  the 
civil  status  cannot  cleanse  him  from  the  foulness  of  vio- 
lated law,  be  that  la^v  military  or  civil. 


34  MILITARY    LAW    AKD    COUIiTS-:MAETIAL. 

This  is,  liowever,  but  a  general  view  of  the  question. 
Practically,  two  cases  may  arise,  dej)endent  upon  tlie 
time  ^vhen  proceedings  are  commenced. 

1st.  AYhen  proceedings  are  commenced  hefore  the  ex- 
piration of  his  enlistment. 

A  case  in  point  arose  in  the  navy,  in  January,  1830, 
and  as  it  throws  much  light  upon  the  principles  of  law 
involved  in  the  discussion  of  this  question,  a  few  extracts 
from  the  opinion  of  the  court  are  here  given. 

It  appears  that  William  Walher  enlisted  into  the  navy 
of  the  United  States,  on  the  5th  January,  1829,  to  serve 
one  year;  and  that  on  the  3d  Januaiy,  1830,  he,  being 
still  a  seaman  in  the  navy,  committed  certain  crimes  and 
offences.  His  commanding  officer.  Captain  Morris,  im- 
mediately placed  him  in  confinement,  and  on  the  day 
following,  preferred  charges  against  him  to  the  secretary 
of  the  navy,  and  accordingly  a  court-martial  for  his  trial 
was  ordered  on  the  13th,  which  court  was  duly  convened. 

The  accused  w\as  brought  before  the  Supreme  Court 
of  Massachusetts,  on  a  writ  of  habeas-  corpus^  and  his 
counsel  moved  the  court  that  he  should  be  discharged 
without  delay.  This  motion  was  resisted  by  the  op- 
posing counsel,  and  after  arguments  from  both  sides 
had  been  heard  by  the  court,  a  decision  was  given. 

"  *  *  *  The  motion  for  the  petitioner's  discharge 
from  the  custody  of  Cai)tain  ]\Iorris,  is  grounded  upon 
the  objections,  that  neither  by  the  rules  for  the  regula- 
tion of  the  navy,  nor  by  any  other  statute,  is  it  provided 
that  an}-  seaman  should  be  detained  1)eyond  the  period 
of  his  enlistment,  for  any  purpose  or  cause  whatever :  *  * 
tliat  unless  it  is  so  provided  by  ex])ress  statute,  liis  offi- 
cers have  no  authority  to  detain  him  for  trial,  or  for  any 


JURISDICTION.  35 

other  purpose  heyond  tlie  term  of  his  enlistment.  •'  "' 
Now  the  ^v^or(ls  of  the  statute  do  not  require  such  a  con- 
struction. It  is  true  that  a  seaman  is  not  l)Ound  to  do 
service  after  the  term  of  his  enlistment.  But  within 
that  term  he  is  bound  to  observe  the  rules  and  regula- 
tions provided  Ijy  law,  for  the  government  of  the  navy, 
and  is  ])unisliable  for  all  crimes  and  offences  committed 
in  violation  of  them  durinac  his  term  of  service.  There 
is  no  limitation  of  time  within  which  he  is  to  be  prose- 
cuted and  tried  for  such  offences,  but  if  there  were,  it 
would  be  sufficient  to  show  that  the  prosecution  was 
eommencod  ^vithin  the  time  of  limitation. 

"In  this  case  the  petitioner  was  arrested  and  put  in 
confinement,  and  charges  were  preferred  against  him  to 
the  secretary  of  the  navy,  Ijefore  the  expiration  of  the 
time  of  his  enlistment ;  and  this  was  clearly  a  suffi- 
cient commencement  of  the  prosecution  to  authorize  a 
court-martial  to  proceed  to  trial  and  sentence — notwith- 
standing the  time  of  service  had  expired  before  the 
court-martial  had  been  convened.  There  can  be  no 
doul)t,  I  think,  that  the  court-martial  have  jurisdiction, 
and  that  they  may  legally  proceed  in  the  trial  on  the 
charges  stated  in  the  return.  The  petitioner  must 
therefore  be  remanded  to  the  custody  of  Caj^tain 
jMorris.^'- 

Upon  this  decision,  the  accused,  William  Walker,  was 
duly  tried  by  the  court-martial,  upon  the  charges  pre- 
ferred against  him.  But  it  nuist  be  remembered  that 
the  above-fpioted  decision  covers  such  cases,  and  only 
such,  in  which  the  prosecution  has  T)e('n  connnenced  he- 
fore  the  expiration  of  tlie  pi'isoner  s  enlistment. 

*  De  Hart,  p.  35.     Americau  Jurist,  April,  1830. 


36  MILITARY    LAW    AND    COURTS-MARTIAL. 

2(1.  Wlieii  j^roceedings  are  commenced  after  tlie  ex- 
piration of  Ills  term  of  service. 

Our  laws  virtually  prohibit  any  action  to  be  liad,  in 
sucli  a  case,  by  a  military  court.  The  act  of  January 
llth,  1812,  section  21,  expressly  declares  that,  for  the 
crime  of  desertion,  a  "  soldier  shall  and  may  be  tried  by 
a  court-martial,  and  punished,  although  the  term  of  his 
enlistment  may  have  elapsed  previous  to  his  being  ap- 
prehended or  tried,"  and  this  is  the  section  that  pro- 
vides penalties  "  in  addition  to  the  penalties  mentioned 
in  the  rules  and  articles  of  war."  Such  legislation  on 
the  part  of  the  law-making  j^ower  would  seem  to  pre- 
suppose a  want  of  jurisdiction  by  courts-martial,  in 
similar  cases,  under  the  rules  and  articles  of  war,  passed 
April  10th,  1806,  and  is  therefore  a  bar  to  the  action  of 
military  courts,  except  in  the  single  case  of  desertion. 


CHAPTER    lY. 

DISTINCTIVE   JURISDICTION— OFFENCES 
AND  PUNISHMENT. 

The  gravity  of  tlie  oifence,  tlie  rank  and  position  of 
tlie  offender,  and  the  punishment  denounced,  determine 
THE  KIND  OF  COURT-MARTIAL  that  has  jurisdiction  in  any 
particular  case.  No  garrison  or  regimental  court-martial 
shall  liave  the  power  to  try  capital  cases  or  commission- 
ed officers.*  These  cases  come  under  the  exclusive  cog- 
nizance of  general  courts-martial ;  and  here  we  find  the 
broad  distinction  dra^^^l  between  the  superior  and  the 
two  minor  courts. 

From  the  concluding  portion  of  the  G7th  article  it  is 
evident  that  aggravated  oifences,  though  not  ca])ital, 
that  call  for  severer  punishment  than  therein  stated, 
should  not  be  brought  before  these  minor  com-ts.  In 
deciding,  therefore,  upon  the  particular  jurisdiction  ne- 
cessary for  the  trial  of  a  certain  offence,  A\'here  it  is  left 
discretionary  with  the  appointing  power,  the  utmost 
care  should  be  taken  to  select  a  court  with  po^ver  suffi- 
cient to  try  and  to  punish  to  the  full  measure  of  the  law. 
In  cases  of  doubt,  the  safe  and  only  just  rule  is,  to  bring 
the  offi'nce  l)efore  the  superior  court,  tliat  the  ends  of 

*  Article  G7.  Note. — "  I  am  of  opinion  tliat  cadets  at  tlie  Military  Academy  may 
be  tried  liy  a  regimental  or  garrison  court-martial,  according  to  tlio  GtUh  and  GTth 
articles  of  war  :  because  they  are  not  commissioned  officers,  and  belong  to  a  separ- 
ate and  detached  corps."     Opinions,  May  19th,  1821. 


38  MILITARY    LxVW    AXD    COUETS-ZMARTIAL. 

justice  may  be  properly  met  and  fully  satisfied.  If  a 
minor  court  should  discover  that  a  case  before  it  exceeds 
its  power  to  punish,  its  duty  forces  it  to  stay  all  further 
proceedings,  and  report  the  facts  to  the  authority  that 
convened  it. 

The  only  court  competent  to  try  every  description  of 
persons  known  to  the  rules  and  articles  of  war,  and  for 
every  offence  declared  by  them,  is  the  general  court- 
martial;  and  under  the  35th  article,  can  receive  appeals 
from  regimental  courts.  It  has  been  followed  as  a  cus- 
tom and  acknowledged  as  a  principle,  that  while  the 
inferior  courts  cannot,  upon  any  j)retence,  proceed  in 
the  investigation  of  any  description  of  crime  which  has 
not  been  ex23licitly  stated  as  subject  to  its  authority, 
yet  the  sujDerior  court  can,  by  virtue  of  its  grade,  ne- 
cessarily take  cognizance  of  all  military  offences  what- 
ever;* thus  including  those  offences  that  are  specified 
in  the  law  as  expressly  subject  to  a  regimental  court.f 
But  upon  the  trial  and  conviction,  in  such  a  case,  by 
a  general  court-martial,  the  punishment  inflicted  should 
be  limited  to  the  quantum  that  could  be  awarded  by 
a  regimental  court.  The  law  itself,  by  bringing  those 
])articular  cases  under  inferior  jurisdiction,  has  virtually 
fixed  the  maximum  of  j^unishment,  in  kind  and  degree, 
required  to  satisfy  its  violation,  and  therefore  no  court 
of  superior  j^owers  should  go  beyond  the  clear  intent  of 
the  law. 

Amount  and  Nat'irc  of  Punisliincnt.  The  rules  and 
articles  of  war  have  specified  the  amount  and  nature  of 
punishment  for  many  kinds  of  oftences,  and  in  such  cases 
the  court  is  left  no  discretion  in  the  event  of  conviction. 

*  Adye,  p.  96.  f  3<th  aud  47th  articles  of  war. 


DISTIXCTIVE    jnilSDICTION.  39 

The  sentence  of  death  is  j)roliil)ited  by  tlie  99tli  article, 
unless  expressly  autliorized  by  the  "  foregoing  articles 
of  war,"  and  there  are  but  two  cases,*  where  this  sen- 
tence is  not  left  discretionary  witli  the  general  court, 
but  must  be  inflicted  upon  conviction.  For  the  crime  of 
desertion  the  punishment  of  death  has  been  restricted  to 
time  of  war,  ])y  the  act  of  Congress  of  May  29th,  1830; 
and  stripes  which  could  be  awarded  for  this  offence 
only,  have  l'>y  a  recent  act  of  Congress  been  entirely  pro- 
hibited, in  these  words,  "  That  flogging  as  a  ])unishment 
in  the  army  is  hereby  abolished."f 

By  the  84^A  article  it  is  enacted,  that  in  cases  where 
a  court-martial  sentence  a  commissioned  oflicer  to  be 
suspended  from  command,  they  shall  have  powder  also  to 
sii-s-2?end  his  ^m?/  and  emoluments  for  the  same  period. 
This  punishment  was  usual  in  the  British  arm\'  i)rior 
to  1815,  but  tlie  necessary  inconvenience  to  the  service 
arising  from  the  temporary  witlidrawal  of  officers  from 
its  active  duties,  caused  its  al)andonment.  Suspension 
from  rank  and  pay,  besides  its  injurious  effects  u})on  the 
service  at  large,  acts  unequally  upon  individuals,  and 
may,  in  its  results,  inflic-t  the  severest  punishment  in  loss 
of  rank  u^^on  those  least  ol)noxious  to  such  severity. 
Forfeiture  of  pay  to  an  officer  of  abundant  private  means 
may  prove  but  a  trifling  loss,  compared  to  the  terrible 
deprivation  to  one  who  may  be  exclusively  dependent 
upon  it.  The  utmost  care  ought,  therefore,  to  be  had  in 
the  exercise  of  tliis  ])ower,  as  it  might  in  many  instances 
be  productive  of  evil,  and  defeat  the  very  ends  for  which 
the  law  was  enacted. 

*  Article  5oth,  and  2d  section,  article  of  war. 
f  Act  approved  August  utli,   1861. 


40  MILITARY    LAW    AND    COUETS-MARTI^iL. 

To  remedy^  if  possible,  tlie  ill  effects  of  enforcing  the 
requirements  of  this  article,  the  President  recently  direct- 
ed, in  general  orders,*  that  general  coui-ts-martial,  before 
which  the  question  may  properly  come,  l)e  invited  to 
consider  whether  an  eifectual  and  appropriate  2)enalty 
may  not  be  inflicted  without  injury  to  the  service  by 
adjudging  a  certain  loss  of  rank,  instead  of  a  susjjen- 
sion  from  rank  for  a  period  of  time,  the  effect  of  which 
upon  the  officer  is  not  certain  when  the  sentence  is  pro- 
nounced, Init  which  must  operate  to  the  prejudice  of 
the  service  in  removing  an  officer  from  duty. 

Non-commissioned  officers  can  1  )e  reduced  to  the  ranhs 
for  certain  offences  specified  in  the  39th  and  4Sth  arti- 
cles ;  and  the  custom  of  service  has  extended  the  exercise 
of  this  authority,  so  that  general,  regimental,  and  gar- 
rison courts  do  not  limit  the  application  of  this  punish- 
ment to  these  two  articles.  This  right  is  fully  confirmed 
by  the  general  regulations  for  the  army,f  and  its  exer- 
cise may  be  often  necessary,  as  non-commissioned  offi- 
cers cannot  be  imprisoned  or  suffer  corporeally,  before 
reduction.  J 

Regimental  courts-martial  have,  1^y  the  35th  article  of 
war,  been  confided  with  the  special  power  to  investigate 
complaints  of  soldiers  against  their  captains  or  other 
officers,  but  as  this  authority  is  not  punitive  in  its  na- 
ture, the  limited  jm'isdiction  conferred  l)y  the  67th  arti- 
cle is  not  affected  thei'eby. 

Article  67  declares  that  garrison  and  regimental 
courts-martial  shall  not  inflict  a  fine  exceeding  one 
month's  pay,  nor  imprison  nor  put  to  hard  labor  for  a 
longer  period  than  one  month.   This  is  tlien  an  acknowl- 

*  Xo.  43,  Dec.  22d,  1852.  f  Tar.  79.  X  ^^r.  78. 


DISTINCTIVE    JUUISI)ICTI0:N".  41 

edged  military  punislimeut,  wliicli  can  also  he  exercised 
by  a  general  court-martial  at  its  discretion.  The  princi- 
ple Dhserved  hy  civil  courts  also  applies,  that  "  where 
an  offence  exists,  to  Avhich  no  specific  punishment  is 
affixed  by  statute,  fine  and  imprisonment  is  the  punish- 
ment." 

Discussion  has  arisen  as  to  whether  a  minor  court-mar- 
tial can  take  cognizance  of  offences  under  the  38th  arti- 
cle. The  total  amount  of  stoppage  of  pay,  and  con- 
finement, and  corporeal  ])unishment  under  the  article 
is  not  limited,  and  as  this  stoppage  of  pay  is  tanta- 
mount to  the  "fine''  declared  in  the  C7tli  article,  the 
jui'isdiction  of  the  minor  courts  must  he  confined  to 
cases  that  come  under  the  general  rule  limiting  them 
to  the  infliction  of  a  fine  not  exceeding  one  month's  pay, 
etc.,  and  any  offence  that  demands  a  severer  punish- 
ment will  require  a  general  court-martial  for  its  trial. 

Oficjiees.  I.  The  offences  over  which  a  general  court- 
martial  alone  has  cognizance,  are  : 

Art.  27.  In  case  of  quarrels,  frays,  &c.,  for  refusing  to 
obey  an  officer  (though  of  an  inferior  rank),  or  drawing 
a  sword  upon  him. 

Art.  52.  Misbehaving  before  the  enemy,  shamefully 
abandoning  his  fort,  post,  &c.,  casting  away  his  arms, 
quitting  his  coloi-s  to  plunder  and  pillage. 

Art.  53.  Making  known  the  watchword  to  any  per- 
son not  entitled  to  it,  <fec. 

Sec.  2.  In  time  of  war,  persons  not  citizens  of,  or  ow- 
ing allegiance  to,  the  United  States,  who  shall  be  found 
lurking  as  spies,  &c. 

II.    The    offences    against    which    penalties    are   de- 

*  Kent,  370. 


42  MILITARY    LAW    AND    COURTS-.AIARTIAL. 

noiinced  exceeding  the  i)C)wer  of  regimental  and  gar- 
rison court s-martial  to  inflict,  are  : 

Art.  7.  Beginning,  exciting,  causing,  or  joining  in  any 
mutiny  or  sedition. 

Art.  8.  Being  present  at  a  mutiny  and  not  endeavor- 
ing to  suppress  tlie  same,  &q. 

Art.  9.  Strilvino;  or  offerino;  any  violence  ac^ainst  a  su- 
perior  officer,  or  disobeying  any  lawful  command  of  liis 
superior  officer. 

Art.  21.  Desertion. 

Art.  22.  Enlisting  in  any  other  regiment,  troop,  or 
company,  before  being  regularly  discharged. 

Art.  23.  Advising  or  persuading  to  desert. 

Art.  38.  Selling,  losing,  or  spoiling  through  neglect, 
his  horse,  arms,  clothes,  <fec. 

Art.  46.  Sentinel  sleeping  on  post. 

Art.  51.  Doing  violence  to  any  person  who  brings 
provisions,  <fec.,  into  camp,  when  the  forces  are  employed 
out  of  the  United  States. 

Art.  55.  Forcing  a  safeguai'd  in  foreign  parts. 

Art.  56.  Relieving  the  enemy,  or  knowingly  harbor- 
ing and  protecting  him. 

Ai-t.  57.  Holding  correspondence  ^A-ith,  or  giving  intel- 
ligence to  the  enemy. 

Art.  59.  Compelling  a  commander  to  surrender. 

In  addition  to  the  above,  general  courts-martial  have 
exclusive  jurisdiction  in  the  trial  of  commissioned  offi- 
cers.* 

Piiiig^iiimeiits.  Punishments  of  every  description, 
which  may  be  inflicted  by  sentence  of  either  civil  or 
military  courts,  are  regulated  in  kind  and  degree  by  the 

*  Article  75. 


DISTINCTIVE    JURISDICTION^ PUNISmiENTS.  43 

restraining  provision  of  tlie  eiglitli  article  of  tlie  amend- 
ments to  tlie  constitution,  which  declares  tliat  "  excessive 
fines  shall  not  be  imposed,  nor  cruel  and  unusual  punish- 
ments inflicted."  Punishments  are  cruel  when  they  are 
vindictive  in  their  character,  going,  both  in  kind  and 
degree,  beyond  the  intention  and  necessity  of  their 
infliction  for  the  vindication  of  law ;  they  are  imumial., 
in  kind  only,  Avhen  unknown  to  the  statutes  of  the  land, 
or  unsanctioned  by  the  customs  of  the  courts." 

Where  the  punishments  for  particular  oifences  are 
not  fixed  by  the  law,  but  left  discretionary  with  the 
courts,  the  above  mandate  of  the  constitution  must  be 
strictly  kept  in  view,  and  the  benign  influence  of  a  man- 
date from  a  still  hio-her  law  ouo;ht  not  to  be  io-nored, 
that  justice  should  be  tempered  with  mercy. 

The  punishments  for  military  offences,  applicable  to 
officers^  as  fixed  by  the  rules  and  articles  of  war  or  the 
custom  of  service,  which  general  courts-martial  may 
award  on  conviction,  are : 

Deaths  in  cases  specially  mentioned  in  the  law. 

Cafiliiering^  accompanied  with  the  declaration  that  he 
shall  thereby  be  utterly  disabled  to  have  or  hold  any 
oflice  or  employment  in  the  service  of  the  United  States. 

Cashiering^  simply. 

Dismissal. 

Susjyension  from  rank  and  pay. 

Confinement. 

Reprimand — public  or  private. 

In  the  British  service  a  marked  difference  really  exists 
between  cashiering  and  disinissal  as  punishments,  as  is 
shown  by  the  general  order  promulgating  the  sentence 

*  Dc  Hart,  p.  68. 


44  ]\IILITARY    LAW    AND    COURTS-MARTIAL. 

of  Captain  Barnes,  of  the  89tli  regiment,  which  states 
that  "  his  royal  highness  has  not  considered  it  expedient 
to  give  effect  to  the  recommendation  of  the  court  in  the 
prisoner's  behalf,  further  than  to  mitigate  the  term  of 
cashiering  into  that  of  dismissal  from  his  majesty's 
servicer  * 

This  distinction  is  held  to  be  coiTect  by  many  in  our 
service,  and  with  reason,  as  our  articles  have  been 
drawn,  sometimes  bodily,  from  the  British  mutiny  act 
and  articles  of  war.  Our  articles,  however,  make  no 
such  distinction  in  terms,  nor  with  regard  to  the  greater 
or  less  gravity  of  offences  for  which  these  are  imposed, — • 
wherever  future  disability  to  hold  office  is  intended, 
such  intention  is  clearly  expressed.  In  framing  the  law, 
cashiering  and  dismissal  were  denounced  in  certain  ar- 
ticles, because  contained  therein  when  copied  from  the 
British  as  they  undoubtedly  were,  and  the  difference 
in  meaning,  therefore,  can  only  be  based  on  the  custom 
of  the  British  service. 

The  legal  punishment  for  soldiers  by  sentence  of  a 
com^t-martial,  according  to  the  offence,  and  the  juris- 
diction of  the  court,  are :  death ;  confinement ;  confine- 
ment on  bread  and  water  diet ;  solitary  confinement ; 
hard  labor ;  ball  and  chain ;  forfeiture  of  pay  and  allow- 
ances ;  discharges  from  service ;  and  reprimands.  Soli- 
tary confinement,  or  confinement  on  bread  and  water, 
shall  not  exceed  fourteen  days  at  a  time,  with  intervals 
between  the  periods  of  such  confinement  not  less  than 
such  periods ;  and  not  exceeding  eighty-four  days  in 
any  one  year.f 

Kon- commissioned  Officers  may  be  reduced  to  the 

*  Siimuons,  p.  291.  \  General  Regulations,  par.  895. 


DISTINCTIVE    JURISDICTION PUNISHMENTS.  45 

ranks  by  tlie  sentence  of  any  court-martial,  and  in  addi- 
tion are  subject  to  any  of  tlie  above-mentioned  punish- 
ments ^vliick  may  be  awarded  to  sokliers.  However, 
wkere  a  non-connnissioned  officer  is  to  be  punisked  by 
confinement,  kard  kxbor,  or  ball  and  ckain,  lie  must  first 
be  reduced,  as  it  is  contrary  to  tke  principles  of  the 
service,  and  derogator}'  to  tke  dignity  of  their  ])o.sition, 
to  cause  non-commissioned  officers  to  l)e  tkus  punisked. 
Tke  puniskments,  tkerefore,  wkick  a  court-martial 
may  sentence  a  prisoner  to  suffer,  are  clearly  under- 
stood, and  are  derived  from  express  statute  or  tke  cus- 
tom of  war.  Sliould  it  kappen  tkat  an  offence  falling 
"witkin  tke  jurisdiction  of  a  court-martial,  he  not  pro- 
vided for  by  a  special  penalty,  but  left  to  be  deter- 
mined by  tke  discretion  of  tke  court,  suck  sentence 
must  be  in  accordance  witk  tke  common  law  of  tke  land, 
or  tke  custom  of  war  in  like  cases ;  a  departure  from  tkis 
would  make  tke  sentence  unusual,  and  as  suck,  unlawful."^ 

*  De  Hart,  p.  195. 


CHAPTER    Y. 

AEREST   AND   CONFINEMENT. 

The  yriii  Article  of  War  directs  that  "  wlienever  an 
officer  shall  be  charged  with  a  crime,  he  shall  be  arrested 
and  confined  in  his  barracks,  quarters,  or  tent,  and  de- 
prived of  his  sword  by  the  commanding  officer,''  thus 
descril^ing  the  preliminary  steps  to  be  taken  for  the  pros- 
ecution of  offences.  "And  any  officer  who  shall  leave 
his  confinement  before  he  shall  be  set  at  liberty  by  his 
commanding  officer,  or  by  a  suj^erior  officer,  shall  be 
cashiered." 

Although  the  law  makes  no  mention  of  any  diffi?rence 
in  the  nature  of  arrests  in  order  to  trial,  a  difference  is 
established  by  the  custom  of  the  army  according  to  the 
degree  and  measure  of  the  offence.  An  officer  accused 
of  a  capital  crime,  or  any  offence  of  which  the  penalty 
is  so  severe  as  to  afford  a  natural  temptation  to  escape 
from  justice,  ought  to  be  detained  in  a  state  of  confine- 
ment, as  secure  as  the  closest  civil  imprisonment.  If 
the  offence  is  of  a  lighter  nature,  the  presumption  is, 
that  the  officer  whose  character  is  thus  impeached  must 
be  solicitous  to  obtain  a  judicial  investigation  of  his 
conduct,"  and  he  is  therefore,  either  placed  in  close 
arrest,  that  is,  limited  to  his  quarters  or  tent ;  or  al- 
lowed to  be  in  aiTest  at  large,  that  is,  with  limits  ex- 

*  Tytler. 


ARREST    AND    CONFINEMENT.  4Y 

tended  to  tlie  garrison,  camp,  or  other  defined  bound- 
aries. 

The  general  regulations  provide  that  in  ordinary  cases, 
and  where  inconvenience  to  the  service  would  result  from 
it,  a  medical  officer  will  not  be  put  in  arrest  until  the 
court-martial  for  his  trial  convenes.  They  also  provide 
that  officers  are  not  to  be  placed  in  arrest  for  slight  offen- 
ces, and  that  close  confinement  is  not  to  be  resorted  to 
unless  under  circumstances  of  an  aggravated  character.* 

The  depriving  an  officer  of  his  sword,  as  directed  in 
the  article,  is  generally  omitted,  but  is,  nevertheless, 
considered  to  have  taken  place,  and  it  is  invariably  the 
custom  for  an  officer  in  arrest  to  ap])ear  without  his 
sword.  The  arrest  is  usually  imposed  l3y  the  com- 
manding officer  himself,  or  through  the  ministration  of 
his  staff  officer,  and  their  mere  verbal  order  to  that 
effect  is  sufficient  to  prevent  him  from  exercising  even 
the  minor  functions  of  his  office. 

Broiicii  of  Arrest  is  descri])ed  by  the  article,  as  leav- 
ing his  confinement  l)efore  he  shall  be  set  at  liberty  by 
proper  authority,  and  ccishierlng  is  denounced  as  the 
penalty,  leaving  to  courts-martial  no  discretion  whatever. 
The  variety  of  o])inions  that  have  Ijeen  held  as  to  the 
exact  meaning  and  import  of  what  constitutes  breach 
of  arrest,  are  not  founded  upon  the  clear  and  explicit 
words  of  the  statute.  Cashiering  is  affixed  to  the  of 
fence  of  "  leaving  his  confinement,"  in  express  terms,  and 
to  no  other  offence ;  and  not  even  by  im])lication  can  any 
other  misdemeanor  be  presumed  as  flowing  from  the 
plain  wording  of  the  la^v.  Tlie  assumption  of  connuand, 
wearing  a  sw^ord,  or  visiting  officially  his  commanding 

*Par.  222,  223  and  224. 


48  MILITARY    LAW    AKD    COURTS-MARTIAL. 

officer  unless  sent  for,  while  in  arrest  and  within  his  lim- 
its, are  evident  improprieties  prohibited  by  the  general 
regulations  of  the  army,  and  therefore  lial^le  to  })unish- 
ment;  but  they  are  not  breaches  of  aiTest,  unless  in 
the  words  of  the  article,  he  "leaves  his  confinement 
before  he  shall  be  set  at  liberty  by  his  commanding 
officer,  or  by  his  superior  officer."  The  practice  of  the 
British  service  upholds  this  view  of  the  question.  A 
case  is  cited,  in  which  "  Lieutenant  Naylor  was  cashiered 
for  breaking  his  aiTest ;  and  Lieutenant  Williams  was 
cashiered  for,  that  he,  when  commanding  a  guard  over 
a  jDrisoner  committed  to  his  charge,  did  allow  such 
prisoner  to  leave  his  place  of  confinement."* 

The  27th  article  enacts  that  all  officers  of  what  con- 
dition soever,  have  power  to  part  and  quell  all  "  quar- 
rels, fi'ays,  and  disorders,"  and  to  order  officers  in  arrest, 
even  though  the  latter  be  of  superior  rank.  "  Officers  of 
what  condition  soever,"  includes  non-commissioned  as 
well  as  commissioned  officers ;  and  the  law  requires  im- 
plicit obedience  on  the  part  of  all  those  who,  by  their 
conduct,  render  themselves  amenable  to  the  exercise  of 
such  extraordinary  powers  hj  a  junior.  The  assump- 
tion of  a  present  command  by  the  inferior,  is  tolerated 
rather  than  that  the  military  state  should  be  endanger- 
ed by  violent  evils,  which,  if  not  instantly  repressed, 
might  result  in  irremedial)le  mischief.  This  assumption 
is  not,  however,  allowed  to  continue  longer  than  the 
necessity  itself  exists,  that  is,  until  the  superior  officer 
of  the  parties  arrested  can  be  made  acquainted  with  the 
circumstances.f 

The  authority  of  this  article  can  and  should  be  ex- 

*  Simmons,  p.  120.  f  O'Brien,  p.  108. 


AEEEST    AND    CONFINEMENT.  49 

tended  to  any  glaring  impropriety,  sucli  as  drunkenness 
on  parade,  that  properly  comes  under  the  head  of  disor- 
ders. It  was  decided  by  high  authority  in  the  British 
service,  that  circumstances  may  occur  even  upon  parade, 
to  justify  a  junior  officer  in  taking  upon  himself  the 
strong  responsibility  of  j^lacing  his  commander  in  ar- 
rest ;  such  a  measure  must  alone  rest  upon  the  respon- 
sibility of  the  officer  who  adopts  it,  and  there  are  cases 
wherein  the  discipline  and  welfare  of  the  service  require 
that  it  should  be  assumed. 

By  virtue  of  the  78th  article,  "  non-commissioned  offi- 
cers and  soldiers  charged  with  crimes,  shall  be  con- 
fined until  tried  by  a  court-martial,  or  released  by 
proper  authority."  A  distinction  necessarily  exists  be- 
tween the  nature  of  the  arrest  of  officers  and  of  sol- 
diers— the  same  security  for  his  appearance  on  trial  not 
existing  in  the  two  cases.  By  the  general  regulations 
of  the  army,  non-commissioned  officers  are  not  to  be  sent 
to  the  guard-room  and  mixed  with  privates  during  con- 
finement, but  be  considered  as  placed  in  arrest,  except 
in  aggravated  cases  where  escape  may  be  apprehended.* 
With  private  soldiers,  confinement  is  the  usual  mode  of 
securing  their  persons. 

The  80th  article  ordains  that  "  no  officer  commanding 
a  guard,  or  provost  marshal,  shall  refuse  to  receive  or 
keep  any  prisoner  committed  to  his  charge  by  an  offi- 
cer belonging  to  the  forces  of  the  United  States ;  pro- 
vided the  officer  committing  shall,  at  the  same  time, 
deliver  an  account  in  writing,  signed  by  himself,  of  the 
crime  with  which  the  said  prisoner  is  charged." 

The  requirements  of  this  article  are  unmistakable,  and 


50  MILITARY    LAW    AND    COURTS-MARTIAL. 

the  proviso  would  seem  to  admit  tlie  riglit  of  the  officer 
of  tlie  guard,  to  reject  a  prisoner  when  no  written  state- 
ment of  the  crime  charged  was  submitted.  But  the  in- 
terpretation given  in  the  English  army,  seems  more  in 
unison  with  the  demands  of  the  service  and  the  dictates 
of  common  sense.  In  that  service,  the  omission  to  make 
the  written  statement,  or  deliver  in  a  crime  as  it  is  usu- 
ally termed,  would  not  justify  the  rejection  or  release  of 
a  prisoner,  or  exempt  the  officer  of  the  guard  from  lia- 
bility to  the  penalties  attached  to  the  81st  article.  It 
may  sometimes  be  impracticable  to  make  the  written 
statement  on  the  instant,  and  certainly  the  committing 
officer  should  be  allo^ved  reasonable  time  in  which  to 
prepare  it;  and  as  the  general  regulations*  expressly 
direct  that  all  prisoners  under  guard,  without  written 
charges,  shall  be  released  by  the  officer  of  the  day  at 
guard-mounting,  no  person  confined  without  cause  could 
suffer,  at  the  worst,  the  inconvenience  of  durance  vile 
for  a  longer  period  than  twenty-four  hours.  To  prevent 
illegal  confinement  is  indubitably  the  intention  of  the 
article,  and  the  safe  rule  to  be  observed  is,  not  to  receive 
a  prisoner  without  a  written  statement,  unless  he  is 
amenable  to  military  law,  and  is  committed  by  an  officer 
who  is  well  known  to  the  officer  of  the  guard  as  having 
authority  to  do  so. 

The  79tii  article  declares  that  "  no  officer  or  soldier 
who  shall  be  put  in  arrest  shall  continue  in  confine- 
ment more  than  eight  days,  or  until  such  time  as  a 
court-martial  can  be  assembled." 

The  object  and  intent  of  this  article  is  to  deprive  the 
commanding  officer  of  the  right  of  imposing   confine- 

*  Par.  216,  cd.  1857. 


ARREST    AND    CONFINESIENT.  51 

ments,  except  for  trial,  beyond  the  period  of  eight  days. 
It  allows  time  for  the  examination  of  the  facts  and  cir- 
cumstances of  his  case,  so  as  to  decide  whether  or  not  it 
be  one  that  demands  judicial  investigation.  The  pris- 
oner may  be  released  at  any  time  short  of  the  term  of 
eight  days,  without  trial,  but  the  article  is  decided  that 
confinement  beyond  that  period  must  continue  until  a 
court-martial  can  be  assembled. 

It  has  long  been  a  settled  principle  both  in  the  Brit- 
ish service  and  our  own,  that  no  officer  has  a  right  to 
demand  a  court-martial  on  himself  or  others — the  author- 
ity competent  to  order  the  court  being  the  judge  of  its 
necessity ;  nor  after  having  been  arrested  has  he  a  right 
to  demand  a  trial,  or  persist  in  considering  himself  in 
arrest  after  he  shall  have  been  released  by  proper  author- 
ity. If,  however,  the  officer  should  think  himself  ag- 
grieved by  the  arrest,  or  by  charges  that  might  have  been 
preferred  against  him  and  afterward  withdrawn,  he  may 
in  either  case  seek  redress  under  the  Slth  article  of  war. 


CHAPTER    YI. 

CHAKGES  AND  SPECIFICATIONS. 

A  military  Charge  is  a  plain,  brief,  and  certain  nar- 
rative of  tlie  offence  committed,  and  of  tlie  necessary 
circumstances  that  concur  to  ascertain  the  fact  and  its 
nature.*  It  is  of  two  parts :  the  charge,  and  the  speci- 
fications. The  charge  designates  the  crime,  or  offence 
in  law,  as  mutiny ;  the  specification  alleges  or  sj^ecifies 
the  act,  mth  time,  place,  and  circumstance. 

CJiarge.  "  The  commander  who  prefers  a  charge  may, 
in  the  exercise  of  a  just  and  legal  discretion,  when  the 
act  may  fall  under  different  articles  of  war,  elect  under 
which  to  charge  it,  or  may  charge  it  variously  as  in  the 
several  counts  of  an  indictment.  But  under  whatever 
article  a  charge  is  laid,  the  specification  to  it  must  state 
the  act  in  terms  appropriate  to  that  article,  and  not  in 
terms  which  necessarily  refer  to  some  other  article ;  and 
where  the  act  cannot  be  stated  or  described  except  in  the 
language  of  a  particular  article  of  war,  the  charge  is 
confined  to  that  article.  In  this  regard,  the  rule  of  plead- 
ing is  not  merely  technical,  but  is  essential  to  the  legal 
statements  of  offences.  Some  writers  on  military  law 
have  laid  the  -rule  down  so  strictly,  as  to  disallow  any 
resort  to  the  general  article  in  cases  of  offences  specified 
in  the  other  articles.    "  When  an  offence  is  of  that  specific 

*  Lord  Uale. 


CHARGES    AND    SPECIFICATIONS.  53 

quality  as  to  he  reducible  to  a  particular  article  of  war^ 
to  which  a  hnoivn  and  distinct  penalty  is  attached^  it 
must  he  prosecuted  under  such  article,  that  the  intent  of 
the  law  and  the  purposes  of  justice  may  he  answer ed^ 
Samuel  and  Hough.  Tliey  consider  that  in  such  cases 
the  law  restrains  the  discretion  of  commanders  and 
courts,  and  that  the  general  article  "  holds  out  not  a  sub- 
stitute but  a  substantive  course  of  prosecution  for  offences 
not  otherivise  declaredy 

If  the  rule  does  not  obtain  so  strictly  in  our  service, 
still  a  specification  appropriate  to  a  particular  article 
only,  cannot  be  laid  under  the  general  article  to  evade 
the  penalty  prescribed  in  the  particular  article."* 

For  instance,  an  offence  may  be  charged  under  the  gen- 
eral article,  the  99th,  and  triable  by  a  garrison  court- 
martial,  when  the  specification  sets  out  in  distinct  terms 
an  act  in  violation  of  the  46  th  article  of  war,  a  capital  of- 
fence, and  only  triable  by  a  general  court-martial.  This 
may  be  done  to  avoid  the  consequences  that  follow  the 
violation  of  the  particular  article,  which  course  of  pro- 
cedure is  veiy  properly  prohibited  by  the  above  deci- 
sion. When,  therefore,  the  specified  facts  and  circum- 
stances clearly  point  to  a  particular  article,  with  a  dis- 
tinct penalty  attached,  the  prosecution  must  be  had 
under  that  article,  and  the  charge  should  be  expressed 
in  the  terms  used  therein  ;  but  -where  the  offence  alleged 
is  a  mere  disorder  or  neglect,  not  specifically  provided 
for,  it  must  be  charged  under  the  general  article  as  "con- 
duct to  the  prejudice  of  good  order  and  military  disci- 
pline." 

The  settled  usage  of  military  courts  permits  a  prisoner 

*  G.  0.  Xo.  18,  war  department,  July  23d,  1859. 


54  jnLITARY    LAW    AT^D    COURTS-MARTIAL. 

to  be  placed  on  tis  trial,  for  several  distinct  offences  at 
the  same  time.  In  such  cases,  eacli  distinct  offence  must 
be  made  the  burden  of  a  separate  charge  and  its  speci- 
fication, although  but  one  sentence  is  adjudged  for  all 
the  offences  tried  upon  one  arraignment.  But  distinct 
offences  on  separate  trials  by  the  same,  or  by  different 
courts,  may  each  receive  its  appropriate  penalty. 

Specifications.  The  specifications — one  or  more — to 
the  charge,  must  be  : 

1st.  Brief,  clear  and  explicit.  All  the  ingredients  of 
the  offence  with  which  the  accused  is  charged,  th^facts^ 
circumstances  and  intent  constituting  it,  must  be  set  forth 
with  certainty  and  precision,  without  any  repugnancy 
and  inconsistency,  and  the  accused  charged  directly  and 
positively  with  having  committed  it.*  As  every  crime 
or  offence  consists  of  certain  acts  done  or  omitted,  under 
certain  circumstances,  it  does  not  suffice  that  the  ]:>risoner 
be  charged  generally  with  having  committed  it,  but  all 
the  facts  and  circumstances  must  be  set  forth  specifi- 
cally^ and  the  offence  must  appear  on  the  face  of  the 
specification  to  be  a  distinct  substantive  offence. 

Particularity  of  description  would  seem  to  be  for  the 
interest  of  the  party  accused,  if  he  be  innocent,  or  of 
doubtful  guiltiness,  and  for  the  interest  of  the  service  if 
he  be  guilty ;  and  therefore  advantageous  on  both  sides. 
It  woidd  enable  the  accused  to  determine  the  species 
of  offence  for  which  he  is  to  be  tried,  and  prepare  his 
defence  accordingly  ;  and  subsequently  em230wer  him  to 
plead  an  autrefois  acquit  or  autrefois  convict  in  bar  of 
another  prosecution  for  the  same  offence. 

Besides  this,  fa<its  which  are  distinct  in  theii-  nature, 

*  Archbold's  Criminal  Pleadings,  p.  6. 


CHARGES    AND    SPECIFICATION'S.  55 

should  be  set  forth  under  separate  and  distinct  specifica- 
tions. 

As  to  the  certainty  and  intent  of  the  specification, 
the  meaning  of  the  words  must  be  construed  according 
to  their  ordinary  and  usual  acceptation,  and  technical 
terms  according  to  their  technical  meaning.  The  weight 
to  be  attached  to  any  technical  terms  used,  must  depend 
upon  the  importance  given  to  them  by  previous  de- 
cisions in  the  practice  of  courts.  If  the  sense  of  a  word 
be  ambiguous  in  the  ordinary  acceptation  of  it,  it  should 
be  construed  according  as  the  context  and  subject  mat- 
ter require  it  to  be,  so  as  to  render  the  whole  sensible 
and  consistent. 

Written  instniments,  where  they  form  a  part  of  the 
gist  of  the  offence  charged,  must  be  set  out  verbatim. 
Where  part  only  of  a  ^vritten  instrument  is  included 
in  the  offence,  that  part  alone  is  necessary  to  be  in- 
serted. 

The  intention  of  the  party  at  the  time  he  committed 
the  offence  is  often  a  necessary  ingredient  of  it ;  and  in 
such  cases  it  is  as  necessary  to  state  it,  as  any  other  of 
the  facts  and  circumstances  which  constitute  the  offence. 

In  cases  where  the  offences  are  created  by  statute,  the 
statute  contains  a  definition  of  the  offence  ;  and  the  of- 
fence consists  of  the  commission  or  omission  of  certain 
acts,  under  certain  circumstances,  and  in  some  cases, 
with  a  particular  intent.  A  specification  therefore,  for 
an  offence  against  the  statute,  must  declare  the  accused 
to  have  committed  or  omitted  the  acts  under  the  circum- 
stances, and  with  the  intent  mentioned  in  the  statute. 
This  can  be  best  effected  by  the  strict  use  of  the  very 
words  of  the  law,  thus  precluding  all  question  as  to  the 


56  MILITAEY    LAW    AND    COUETS-MARTIAL. 

expression  intended ;  althougli  it  is  held,  that  where  a 
word  not  in  the  statute  is  substituted  for  one  that  is,  and 
the  word  thus  substituted  is  equivalent  to  the  word 
used  in  the  statute,  or  is  of  more  extensive  signification, 
and  includes  it,  the  specification  will  be  sufficient.* 

2d.  Certain  as  to  the  Party  accused.  The  accused  must 
be  described  by  his  rank.  Christian  name,  surname,  and 
the  company,  regiment,  or  corps  to  which  he  belongs. 
The  surname  may  be  such  as  the  accused  has  usually 
gone  by  or  acknowledged;  and  if  there  be  a  doubt 
which  one  of  two  names  is  his  real  surname,  the  second 
may  be  added  after  an  alias  dictus^  thus  John  Smith 
otherwise  called  John  Brown. 

Where  the  identity  of  a  prisoner  fully  and  indisputa- 
bly appears,  it  is  quite  immaterial  whether  he  is  tried 
by  his  real  name  or  by  a  fictitious  one,  or  by  both  names 
under  an  alias.  If  the  circumstances  of  his  having  been 
known  by  different  names  have  arisen  from  mere  mis- 
take or  from  accident,  the  law  will  not  j)ermit  such  mis- 
takes or  accidents  to  defeat  the  ends  of  justice.  But  if 
he  has  designedly  assumed  a  false  name  for  a  sinister 
purpose,  then  the  maxim  applies,  that  no  man,  whether 
in  a  criminal  proceeding  or  elsewhere,  shall  be  allowed 
to  avail  himself  of  his  own  ^vrong.f 

3d.  Ccrtaiai  as  to  the  Person  a;;ainst  ^vhoiii  the  Offence 
was  committed.  In  the  case  of  offences  against  the 
persons  or  property  of  individuals,  the  Christian  name 
and  surname,  with  rank  and  addition  if  he  has  any, 
must  be  stated  if  the  party  injured  be  known.  Should, 
however,  the  name  of  the  injured  party  be  unknown,  he 

*  Archbold's  Criminal  Pleading,  15,  25. 

\  Judge  Advocate  General  Sir  Robert  Grant. 


CHARGES    AND    SPECIFICATIONS.  67 

may  be  described  as  a  person  ^uihiown.  Sucli  cases 
may  arise  under  tlie  32d  and  33d  articles  of  war. 

4tll.  Certain  as  to  Time  and  Place.  Every  material 
fact  specified  must  be  alleged  to  have  been  done  on  a 
particular  day,  and  at  a  particular  place.  An  offence  of 
omission  cannot  indeed  be  said  strictly  to  liave  been 
committed  at  any  time  or  place,  unless  the  law  violated 
state  a  certain  time  and  place,  when  both  should  be 
specified.  But  in  offences  of  commission,  every  act 
which  is  a  necessary  ingredient  of  it,  must  be  laid  with 
time  and  place.  This  is  the  rule  as  laid  down  for 
courts  of  criminal  jurisdiction,  and  should  be  followed 
by  com'ts-martial  as  closely  as  the  circumstances  of  each 
particular  case  will  admit.  In  the  practice  of  courts- 
martial,  some  degree  of  latitude  is,  however,  allowed, 
though  minuteness  and  precision  are  required  whenever 
it  is  possible  to  be  thus  particular. 

It  is  a1  u'-ays  possible  to  state  the  circumstance  oi place 
with  much  more  exactness,  and  this  should  not  be  dis- 
pensed with  in  the  framing  of  specifications.  When 
doubts  are  indulged  as  to  the  precise  time  and  place,  the 
act  may  l:>e  specified  as  committed  "  at  or  near  such  a 
place,"  and  "  on  or  about  such  a  day."  The  rule  recent- 
ly fixed  for  the  guidance  of  our  courts-martial  is  that, 
although  in  the  specification  to  charges,  time  and  place 
ought  to  be  laid  with  as  much  certainty  and  truth  as 
may  be  practicable,  still  it  is  sufficient  in  law  to  prove 
the  offence  to  have  been  committed  at  any  other  place 
and  time  within  the  jurisdiction  of  the  coui't." 

The  following  case  of  Captain  Trenor  will  aid  in  ex- 
emplifying the  foregoing : 

*  G.  0.  No.  16,  -war  department,  June  9th,  1853. 


58  MILITARY    LAW    AND    COURTS-MARTIAL. 

"  Charge  2c/.     Drunkenness  ou  dut}'." 

"  Specification.  In  this,  that  the  said  Captain  Eustice 
Trenor,  of  the  1st  regiment  of  dragoons,  when  on  duty 
as  officer  of  the  day,  at  Fort  Leavenworth,  between  the 
1st  day  of  September  and  the  31st  day  of  December, 
1840,  was  drunk." 

On  being  arraigned  the  accused  pleaded  as  follows : 
Captain  Trenor  "  declines  pleading  to  the  2d  charge  and 
its  specification,  inasmuch  as  it  includes  such  a  length  of 
time  as  to  prevent  the  possibility  of  either  disproving 
it,  or  defending  himself  against  it,  and  he  therefore  hopes 
the  court  will  not  entertain  it." 

The  objections  of  the  accused  being  sustained  by  the 
court,  the  2c7  charge  and  its  specification  were  accord- 
ingly thrown  out.  The  proceedings  in  the  case  were 
submitted  to,  and  ajiproved  by  the  President  of  the 
United  States.* 

Considering  that  the  trial  of  this  case  did  not  take 
place  until  December,  1841,  one  year  and  more  after  the 
time  when  the  offence  was  alleged  to  have  been  commit- 
ted; that  the  wide  range  of  time — four  months — in 
specifying  the  act  was  unnecessary,  in  a  matter  of  de- 
tail for  officer  of  the  day,  which  is  always  upon  record ; 
and  that  it  is  highly  reprehensible  to  accumulate  accusa- 
tions against  an  officer;  the  decision  of  the  court  was 
undoubtedly  correct. 

*  G.  0.  No.  4,  war  department,  January  3 1st,  1842. 


CHAPTER    YII. 
OF  THE  COUET  AND  PARTIES  TO  THE  TRIAL. 

The  discipline  and  reputation  of  the  army  are  deeply 
involved  in  tlie  manner  in  wLieli  military  courts  are 
conducted,  and  justice  administered ;  and  the  duties  of 
officers  appointed  to  sit  as  members  of  courts-maiiial  are 
of  a  grave  and  important  character. 

The  President  of  a  court-martial,  besides  his  duties 
and  privileges  as  member,  is  the  organ  of  the  court,  to 
keep  order,  and  conduct  its  business.  In  all  their  de- 
liberations, the  law  secures  the  equality  of  the  meml^ers. 

The  7 6th  article  of  war  does  not  confer  on  a  court- 
martial  the  power  to  punish  its  own  members.  For  dis- 
orderly conduct,  a  member  is  liable  as  in  other  offences 
against  military  discipline — improper  words  are  to  be 
taken  down,  and  any  disorderly  conduct  of  a  member 
reported  to  the  authority  convening  the  court.  * 

RespoBisibiiity  of  members.  Although  the  proceed- 
ings of  a  court-martial,  duly  constituted  and  organized, 
cannot  be  dictated  to,  or  interfered  with,  by  the  highest 
military  authority,  yet  the  members  thereof  are  collec- 
tively and  individually  responsil)le  to  the  federal  courts 
of  civil  judicature  for  any  al)use  of  power  or  illegal  pro- 
ceedings. McAi-thur  cites  the  case  of  Lieutenant  Frye, 
of  the  Marines,  in  1743,  who  received  from  a  civil  court 

*  General  regulations,  par.  888  and  889. 


60  MILITARY    LAW    AND    COUETS-MAETIAL. 

» 

a  verdict  in  his  favor  for  £1,000  damages,  against  the 
president  of  a  court-martial  which  had  convicted  him  on 
illegal  evidence — the  dei^ositions  of  illiterate  persons 
reduced  to  A\Titing  several  days  l^efore  the  trial  The 
judge  moreover  informed  him,  that  he  was  still  at 
liberty  to  bring  action  against  any  of  the  memhers  of  the 
court-martial. 

In  Great  Britain,  the  superior  courts  of  common  law 
exercise  a  supervisory  or  quasi  appellate  jurisdiction 
over  military  courts.  What  relation  the  Supreme  Court, 
or  other  courts  of  the  United  States,  have  to  courts-mar- 
tial, is  a  question  which  does  not  appear  to  have  under- 
gone adjudication  in  the  United  States.  In  the  states, 
however,  the  relation  of  the  ordinary  courts  to  the  mili- 
tary ones  has  been  the  subject  of  much  and  frequent 
consideration.  Thus,  in  Massachusetts  the  law  is  set- 
tled, that  parties  who  have  legal  ground  to  complain  of 
the  doings  of  military  courts,  are  to  get  their  remedy  by 
action  at  law  for  damages,  if  they  have  right  to  any  ; 
which  corresponds  with  the  view  of  the  Supreme  Coiui: 
of  the  United  States,  where  trespass  was  maintained  to 
recover  damages  for  an  act  done  by  a  court-martial 
'"''dearly  wltliout  its  jurisdiction^^ 

The  jMdge  Advocate.  There  is  a  diversity  of  opin- 
ion among  military  writers,  as  to  the  responsibility  of 
the  judge  advocate  for  his  opinions  given  in  court. 
Captain  Hughes,  in  his  "  Duties  of  Judge  Advocates," 
states  that  Captain  Simmons  has  expressed  his  opinion 
in  opposition  to  all  other  writers  on  military  law :  "  that 
the  judge  advocate  is  not  responsible  to  any  court  of 

*  Cusliing,  Opin.,  April  7th,  1854  (ex  parte  Dunbar,  XIV.  Mass.  K.,  393;  Wise 
vs.  Withers,  1  Craucli,  330). 


THE    COURT   ATfD    TAKTIES.  61 

justice  for  the  o})iiii()u  he  may  give,"  whatever  degree  of 
deference  may  be  due  to  his  advice.  The  weight  of 
British  authority  is  undoubtedly  in  favor  of  his  respon- 
sibility, and  the  words  of  the  mutiny  act  directly  ap- 
plicable to  the  point  in  discussion  seem  also  to  favor 
the  affirmative.  De  Hart  and  O'Brien,  the  only  Amer- 
ican authorities,  insist  upon  the  negative  view  of  the 
question.  The  unreasonableness  of  holding  judge  ad- 
vocates in  our  service  responsible,  appointed  as  they 
usually  are  from  the  junior  officers  of  the  army,  and  fre- 
quently without  experience  and  with  inferior  qualifica- 
tions for  the  discharge  of  such  important  duties,  would 
seem  to  border  on  the  ridiculous.  His  opinions,  in  the 
majority  of  cases,  would  weigh  less  than  that  of  any 
member  of  the  court.  This  is,  however,  not  a  question 
of  expediency,  but  of  law.  The  law  directs  the  judge 
advocate  to  prosecute  in  the  name  of  the  United  States. 
The  court  is  not  required  to  decide  points  of  law  and 
fact  according  to  his  advice  or  opinion.  He  is  a  mere 
prosecutor^  not  a  judge ;  and  the  members  of  the  court, 
and  they  alone,  are,  by  their  oaths,  to  administer  justice 
according  to  the  provisions  of  the  articles  of  war,  and 
in  case  of  doubt,  according  to  their  consciences,  the 
best  of  their  understandings,  and  the  custom  of  war  in 
like  cases — and  not  according  to  the  understanding  and 
conscience  of  the  judge  advocate.  In  his  military 
character  as  an  officer,  he  is  responsible  to  the  authority 
who  convenes  the  court,  or  revises  the  proceedings,  for 
the  proper  discharge  of  his  duty. 

Tlie  act  of  Congress  approved  March  2d,  1S49,  au- 
thorizes the  President,  by  and  Avith  the  advice  and  con- 
sent of  the  Senate,  to  appoint  a  suitable  person  sl^  judge 


62  MILITARY    LAA\^    AKD    COUETS-MARTIAL. 

advocate  for  tlie  anny,  to  be  taken  from  tlie  captains  in 
tlie  army,  wlio  shall  have  the  brevet  rank,  pay  and 
emoluments  of  a  major  of  cavalry.  And  the  69th  arti- 
cle of  war  enacts  that  the  judge  advocate,  or  some  person 
deputed  by  liim,  or  by  the  general,  or  officer  command- 
ing tlie  army,  detachment,  or  garrison,  stall  prosecute, 
&c.  It  is  by  virtue  of  this  article  that  judge  advocates 
are  appointed,  to  assist  at  courts-martial,  by  the  officer 
ordering  the  court.  His  appointment  can,  however,  be 
deputed  to  an  inferior  when  the  convenience  and  necessi- 
ties of  tlie  service  may  demand  it ; — but  his  presence 
and  assistance  are  essential  to  the  jurisdiction  of  a  gen- 
eral court-maitial. 

The  Prisoner.  A  court-martial  has  no  control  over 
the  nature  of  the  arrest  of  a  prisoner,  except  as  regards 
his  personal  freedom  in  court ;  they  cannot,  even  with 
a  \dew  to  facilitate  his  defence,  interfere  to  cause  the 
limits  of  a  close  arrest  to  be  extended.  The  officer  in 
command  is  alone  responsible  for  the  discharge  of  this 
duty,  and  a  case  is  cited  in  which  the  commanding  officer 
was  justified  in  refusing  to  accede  to  the  suggestion  of  a 
court-mai-tial  to  grant  a  prisoner  such  indulgence  as 
might  facilitate  the  examination  of  witnesses,  and  there- 
by enable  him  to  enter  earlier  on  his  defence. 

It  is  held  by  all  military  writers,  as  a  settled  custom, 
that  the  prisoner  should  be  furnished  with  a  cojnj  of  the 
charges  some  time  anterior  to  the  trial.  He  ought  to 
have  a  full  knowledge  of  the  accusations  preferred 
against  him,  and  ample  time  afforded  him  previous  to 
his  arraignment,  to  decide  upon  his  line  of  defence,  and 
upon  the  evidence  and  arguments  that  he  may  deem  ex- 
pedient to  meet   these  accusations.     Should  the  copy 


THE    COUET    AND    PARTIES.  63 

supplied  liim  differ  materially  from  the  charges  and 
specifications  upon  wliich  he  is  arraigned,  justice  and 
reason  would  seem  to  demand  that  additional  time  be 
given  him  by  the  court,  within  which  to  arrange  his 
defence  in  conformity  with  the  altered  state  of  the  accu- 
sations. Extreme  cases,  where  the  necessity  of  immedi- 
ate example  is  imminent,  may  justify  a  departure  from 
this  well  established  custom. 

It  has  been  the  practice  of  the  service  to  furnish  the 
prisoner,  previous  to  his  trial,  with  a  list  of  the  ivltnesses 
for  the  prosecution,  though  the  right  to  demand  such 
a  list  is  not  conceded.  The  right  does  not,  certainly,  rest 
on  law,  but  as  all  the  witnesses  are  to  be  summoned  by 
the  judge  advocate,  who  is  the  prosecutor,  and  the  names 
of  witnesses  for  the  defence  will  thus  become  known  to 
him,  it  is  but  just  and  proper  that  the  same  privilege  be. 
allowed  the  prisoner  by  granting  him  a  list  of  all  who 
are  to  appear  against  him.  The  rule  was  laid  down  by 
high  English  authority,  that  it  was  not  the  duty  of  a 
judge  advocate,  in  all  case-s^  to  furnish  a  prisoner,  pre- 
vious to  the  trial,  with  the  names  and  designations  of 
the  witnesses  by  whose  testimony  any  act  objected 
against  him  is  to  be  proved.*  And  Kennedy  does  not 
deem  it  requisite  that  the  prisoner  should  be  furnished 
with  the  names  of  the  witnesses  on  the  part  of  the  pros- 
ecution, nor  the  prosecutor  with  those  on  the  part  of 
the  defence.  Still,  all  other  authorities  advocate  the 
custom  as  founded  on  equity  and  convenience — as  allow- 
ing time  for  the  appearance  of  witnesses  after  l)eing  duly 
summoned,  and  affording  to  Ijoth  parties  ecpial  oppor- 
tunities of  questioning  their  competency  and  credibility. 

*  sir  Charles  Morgan. 


64  SOLITARY    LAW    AND    COURTS-MARTIAL. 

It  must  be  ])orne  in  mind  that  on  Britisli  courts-mar- 
tial, the  judge  advocate  is  not  the  prosecutor  *  and  may, 
therefore,  hold  both  lists,  without  either  party  being 
aware  of  the  witnesses  required  by  the  other. 

The  general  regulationsf  leave  to  the  judge  advocate 
some  discretion  in  the  summoning  of  the  ivitnesses,  as  it 
directs  that  he  shall  not  summon  any  witness  at  the 
expense  of  the  United  States,  nor  any  officer  of  the 
army,  without  the  order  of  the  court,  unless  satisfied 
that  his  testimony  is  material  and  necessary  to  the  ends 
of  justice.  This  is  a  wise  provision,  as,  from  the  excite- 
ment and  anxiety  incident  to  his  position,  the  prisoner 
may,  without  sufficient  reason,  deem  certain  individuals 
essential  to  his  defence.  Should  the  judge  advocate  re- 
fuse to  summon  a  witness,  the  prisoner  can  appeal  to  the 
court-martial,  from  the  decision  of  the  judge  advocate. 

Neither  the  prosecution  nor  defence  are  confined  to 
the  list  of  witnesses  furnished  prior  to  the  arraignment, 
nor  are  they  forced  to  require  testimony  from  all.  At 
any  stage  of  the  proceedings,  new  witnesses  can  be 
called,  and  any,  or  all  of  those  summoned  can  be  dis- 
missed without  examination. 

Tytler  has  assumed  the  necessity  of  furnishing  the 
accused  with  a  correct  detail  of  the  onemhers  of  the  court- 
martial.  As  the  accused  has  the  right  of  challenge,  it 
is  absolutely  necessary  to  its  efficient  exercise,  that  he 
should  have  every  facility  accorded  to  enable  him  to 
show  cause,  especially  as  peremptory  challenges  are  pro- 
hibited in  military  courts.  To  administer  justice  is  the 
object  for  which  courts-martial  are  convened,  and  as 
every  prisoner  is  supposed  to  be  innocent  until  proved 

*  Articlo  1G3  British  articles  of  war.  f  Par.  890. 


THE    COURT   AND    PARTIES.  65 

to  be  guilty,  every  privilege,  facility,  and  convenience 
sliould  be  allowed  to  liim  consistent  with  the  lionest  and 
faithful  administration  of  the  laws.  Except  in  extreme 
cases,  therefore,  copies  of  the  charges  and  detail  of  the 
court,  and  a  list  of  witnesses  for  the  prosecution,  should 
be  given  to  the  prisoner  a  reasonable  time  before  his 
arraignment  for  trial. 

Amicus  Curiae.  Article  VI.  amendments  to  the  con- 
stitution, declares  that  "in  all  criminal  prosecutions, 
the  accused  shall  have  the  assistance  of  counsel  for 
his  defence."  And  all  the  writers  on  military  law,  with- 
out exception,  admit  it  to  be  the  custom  to  allow  a  pris- 
oner to  have  counsel,  or  at  least  an  amicus  curiae^  or 
friend  of  the  court,  to  assist  him  in  conducting  his  de- 
fence. The  assistance  is  strictly  restricted  to  giving  ad- 
vice, framing  questions  ^vhich  are  handed  by  the  accused 
to  the  judge  advocate  on  separate  slips  of  paper,  or 
offering,  in  ^^Titing,  through  the  same  channel,  any  legal 
objections  that  may  be  rendered  necessary  l)y  the  course 
of  the  proceedings.  It  is  an  admitted  maxim  on  all 
courts-martial,  that  the  counsel  is  not  to  address  the 
court,  or  interfere  in  any  manner  in  the  proceedings ;  his 
presence  is  only  tolerated  as  a  friend  of  the  prisoner. 

Courts-martial  have  always  held  and  exercised  the 
riglit  of  ohjectinrj  to  any  particular  person  designated, 
and  to  revoke  the  permission,  when  granted,  in  case  of 
any  misconduct  on  the  part  of  the  counsel.  The  exer- 
cise of  this  right  is  rendered  particularly  necessaiy  in 
the  trial  of  soldiers,  who  often  select  as  friend,  from 
among  themselves,  who  proves  to  lie  a  most  troublesome 
character,  and  more  likc^ly  to  prejudice  the  cause  of  the 
prisoner  than  aid  iu  making  a  good  defence. 


66  MILITARY    LAW    AND    COUETS-MAETIAL. 

If  tlie  judge  advocate  finds  it  essential  to  tlie  proper 
conduct  of  tlie  trial  and  the  surer  furtherance  of  justice, 
to  request  that  the  accuser,  who  has  been  du'ectly  affected 
in  his  authority  or  person  by  the  transgression,  remain 
in  court,  he  may,  after  having  given  his  evidence,  be 
permitted  to  do  so.  This  is,  however,  a  matter  of  con- 
venience, and  not  essential  to  the  ^proceedings ;  and  the 
accuser  is  confined  in  his  assistance  to  mere  suggestions 
made  to  the  judge  advocate,  which  the  latter  may  fol- 
low or  not,  at  his  discretion. 

Interpreter.  It  is  sometimes  necessary  to  employ  an 
interpreter,  for  the  purpose  of  translating  the  evidence 
given  by  the  witnesses.  In  such  a  case,  he  may  be  in- 
troduced and  sworn  at  any  period  of  the  j^roceedings,  if 
required  by  either  party  or  by  the  court. 

The  parties  before  the  court — that  is,  the  judge  advo- 
cate as  prosecutor,  and  the  prisoner — may  claim  the 
benefit  of  its  aggregate  opinion^  on  any  mooted  point  of 
law  or  custom  arising  out  of  the  proceedings,  and  in 
the  decision  of  which  both  parties  may  be  interested. 

The  Rceord.  The  proceedings  of  a  general  court-mar- 
tial are  recorded  by  the  judge  advocate  ;  and  of  inferior 
courts  by  the  junior  member  or  recorder.  Not  only  is 
the  evidence  taken  down,  but  every  incidental  trans- 
action is  noted  on  the  face  of  the  record.  And  courts- 
martial  have  the  right,  which  may  be  exercised  at  dis- 
cretion, to  forbid  any  other  record  to  be  kept,  and  thus 
prevent  a  daily  publication  of  the  proceedings,  ^vhich 
mio-ht  have  the  baneful  tendency  to  pervert  the  pul)lic 
mind  in  regard  to  the  trial  and  its  results,  and  more- 
over, liave  improper  influence  on  the  witnesses  whose 
testimony  is  yet  to  be  delivered. 


THE    COURT    AND    PARTIES.  67 

Court  Assembles.  The  order  convening  a  general 
court-martial  having  been  issued,  and  the  hour  for  as- 
sembling having  arrived,  the  members  take  their  places 
at  the  table  according  to  rank,  on  the  right  and  left  of 
the  presiding  officer.  The  president  is  seated  at  the 
head  of  the  table,  and  the  judge  advocate  immediately 
opposite  to  him.  The  prisoner  and  his  counsel  have  a 
table  and  seats  assigned  them,  with  conveniences  for 
wi'iting,  on  the  right  hand  of  the  judge  advocate,  and 
the  witness  is  seated  near  the  judge  advocate,  and  usu- 
ally on  his  left. 


CHAPTEE   YIII. 

CHALLENGES  AND  OATHS. 

Ctaalleiiges.  When  a  member  sliall  be  challenged  by 
a  prisoner,  he  must  state  his  cause  of  challenge,  of  which 
the  court  shall,  after  clue  deliberation,  determine  the 
relevancy  or  validity,  and  decide  accordingly ;  and  no 
challenge  to  more  than  one  member  at  a  time  shall  be 
received  by  the  court.*  Pere?7ipto?y  chaRen<jes^  that  is, 
challenges  without  cause  assigned,  are  unknown  to  conrts- 
martial,  being  prohibited  by  the  above-quoted  article. 

Challenges  to  the  array^  are,  at  once,  an  exception 
to  the  entire  court.  This  might  arise  either  from  the 
want  of  competent  authority  in  the  officer  ordering  the 
court,  or  in  its  illegal  organization,  or  from  the  lack 
of  comj^etency  and  jurisdiction  in  the  court  to  proceed 
with  the  trial,  were  such  challenges  permitted  by  the 
law.  Although  the  accused  may  object  to  every  indi- 
vidual composing  the  court,  challenges  to  more  than  one 
member  at  a  time  cannot  be  entertained — he  cannot 
challenge  the  court  generally ;  "until  sworn  in,  it  is  not 
competent  to  decide  uj^on  questions  in  the  nature  of 
pleas  in  l)ar  of  trial. "f 

When  a  member  is  challenged^  the  prisoner  must  state 
his  objections  in  fall.  This,  together  with  the  assertions 
or  declarations,  if  any,  of  the  challenged  i^arty,  and  of 

*  7lst  article  of  war.  \  Simmons,  p.  193,  note. 


CHALLENGES    AND    OATIIS.  69 

tlie  "witnesses  adduced,  are  committed  to  ^^Titing  as  j^art 
of  the  record ;  and  witli  closed  doors,  tlie  court  delib- 
erates and  decides  on  the  objections  assigned.  The  chal- 
lenged member  always  withdraws  on  the  clearing  of  the 
court,  in  order  to  promote  freedom  of  discussion.  Upon 
reopening  the  doors,  the  parties  are  called  in,  and  the 
decision  is  made  knoAvn  through  the  judge  advocate. 
The  challenged  member  then  resumes  his  seat,  or  with- 
di'aws  altogether  and  is  replaced  by  a  supernumerary, 
if  any  be  detailed. 

The  objections  of  the  accused,  the  assertions  of  the 
challenged  party,  and  the  declarations  of  the  witnesses, 
are  not  made  to  the  court  under  the  solemnity  of  an 
oath,  because  prior  to  being  itself  sworn  the  court  has 
deliberative  capacity  only,  competent  to  decide  on  the 
validity  of  challenges,  while  the  law  requires  each  mem- 
ber to  take  a  prescribed  oath  as  a  necessary  qualifica- 
tion for  the  exercise  of  judicial  authority,  and  until  it  is 
clothed  with  its  judicial  power,  no  oath  can  be  adminis- 
tered by  it. 

When  it  is  practicahle  to  do  so,  all  cliallenges  should 
he  admitted.  It  is  not  only  right  to  be  as  mild  as  possi- 
ble toward  a  prisoner,  but  it  is  right  also  to  let  the  pub- 
lic and  the  prisoner  see  that  such  is  the  case.  A  culprit 
should  never  be  made  to  appear  in  the  light  of  a  martyr; 
for  when  this  takes  place,  much  of  the  advantage  of  pun- 
ishment is  lost.*  And  Sir  Edward  Blackstouef  remarks 
that  upon  challenges  for  cause  shown,  if  the  reason  as- 
signed prove  insufficient  to  set  aside  the  juror,  perhaps 
the  bare  questioning  his  indiiference  may  provoke  re- 
sentment.   Care  should  be  taken,  however,  not  to  admit 

*  Sir  C.  J.  Napier,  p.  94.  f  4  Coramentary,  p.  352. 


TO  MILITARY    LAW   AND    C0UET3-MARTIAL. 

frivolous  causes  as  valid  o])jections,  as  otherwise  tlie 
prisoner  might  inteiTupt  the  course  of  justice  to  the  in- 
jury of  the  service,  it  being  often  inconvenient  to  replace 
members  who  have  l^een  thrown  out  under  challenges. 

The  judge  advocate  should^  under  particular  circum- 
stances, also  exercise  the  right  of  challenge^  as  there 
may  be  members  of  the  court  as  lialjle  to  objections 
for  favorable  dispositions  toward  the  prisoner  as  the 
contrary.  This  right  is  based  on  the  practice  of  courts- 
martial,  and  not  on  any  provision  of  law,  and  should 
therefore  l)e  exercised  only  in  extreme  cases  and  with 
great  caution. 

The  judge  advocate  himself  is  not  challengeable^  as 
challenges  are  by  the  article  confined  to  the  members  of 
the  court-martial.  He  is  not  a  member,  but  an  assistant 
to  prosecute  in  the  name  of  the  United  States,  and  to 
record  the  proceedings  of  the  court.  And  yet  it  has 
been  truly  remarked*  that  if  the  judge  advocate  has  a 
bias  against  the  prisoner  he  has  power  to  gratify  it; 
because  by  being  privy  to  all  the  consultations  of  the 
court  from  which  the  prisoner  is  excluded,  he  can,  if  he 
choose,  bear  hard  upon  the  latter.  He  is  also  the  legal 
adviser  of  the  court,  and  this  is  not  fair,  even  giving 
the  judge  advocate  credit  for  being  an  honorable  and 
able  man ;  if  he  be  a  foolish,  or  a  prejudiced,  or  a  dis- 
honest man,  who  has  a  spite  at  the  prisoner,  the  latter 
has  a  most  dangerous  enemy  to  deal  ^\dth.  Under  such 
circumstances,  therefore,  there  can  be  no  good  reason 


-•)  y'-^^'^^'^^^^t 


g^ 


why  a  challenge  of  the  judge  advocate  for  cause,  should 
not  at  least  be  referred,  ^\'ith  the  grounds  assigned,  to 
the  authority  who  convened  the  court  for  his  orders  in 

*  Sir  C.  J.  Napier,  p.  113. 


CHALLENGES    AND    OATHS.  71 

the  case.  Nevertlieless,  the  practice  is,  that  the  judge 
advocate  is  not  lial)le  to  challenge. 

Cliallenges  to  particular  jurors  have  been,  by  la^vyers, 
reduced  to  four  heads.  Causes  of  challenge  for  the  con. 
sideration  of  courts-martial,  most  frequently  fall  under 
the  third  head — for  suspicion  of  bias,  prejudice,  or  mal- 
ice, technically  termed,  lyropter  affectum — and  may  be 
either  a  principal  challenge,  or  to  the  favor. 

A  principaS  Challenge  is  such  where  the  cause  assigned 
carries  with  it  prima  facie  evident  marks  of  suspicion, 
either  of  malice  or  favor :  as  that  a  juror  is  kin  to  either 
party  within  the  ninth  degree ;  that  he  has  an  interest  in 
the  cause ;  that  there  is  an  action  depending  between 
him  and  the  party;  that  he  has  taken  money  for  his 
verdict ;  that  he  has  formerly  been  a  juror  in  the  same 
cause ;  that  he  is  the  party's  master,  servant,  counsellor, 
steward,  or  attorney,  or  of  the  same  society  or  corpora- 
tion with  him ;  all  these  are  principal  causes  of  chal- 
lenge, which,  if  true,  cannot  be  overruled;  for  jurors 
must  be  omni  exceptione  majores. 

Chaiienge^i  to  the  Favor  are  where  the  party  hath  no 
principal  challenge,  but  objects  only  some  probable  cir- 
cumstances of  suspicion,  as  acquaintance  and  the  like.* 

In  this  connection  the  following  decision  from  the 
War  Department  is  quoted,  as  bearing  materially  ui)on 
this  subject. 

The  accused  challenged  a  member  for  "bias,  prejudice, 
and  malice."  The  meml)er  "  then  stated  that  he  had  no 
prejudice  or  bias  against  the  accused  which  could  in 
the  remotest  degree  interfere  with  his  doing  justice  in 
the  case ;"  but  "  1  )eing  challenged  he  requested  to  l)e 

*  3  Black's  Commentary,  p.  362. 


72  ^riLITARY    LAW    AXD    COURTS-MARTIAL. 

relieved  from  sitting^  on  the  court,"  wliicli  tlie  court 
refused,  and  overruled  tlie  challenge.  The  accused  then 
requested  that  the  member  might  be  "  put  on  his  voir 
dire,  in  order  that  he  might  examine  him  as  to  the  ex- 
tent of  any  prejudice  he  might  entertain ;"  which  appli- 
cation the  court  refused.  *  *  *  "It  was  never  doubt- 
ed that  a  juror  may  be  examined  as  to  his  bias  or  preju- 
dice, or  his  opinions  in  the  matter  for  trial ;  except  that 
it  was  at  one  time  held  that  oj^inions  formed  and  ex- 
pressed, as  they  may  be  proved  by  extrinsic  evidence, 
ought  to  be  so  proved. 

But  that  distinction  is  not  now  maintained  in  the 
courts  of  the  country ;  and  an  accused  is  now  allowed 
in  all  cases,  for  the  better  security  of  an  impartial  trial, 
to  show  the  mind  of  the  juror  by  examining  him  before 
the  court ;  and  the  only  exception  is,  where  the  cause  of 
challenge  goes  to  the  disgrace  or  discredit  of  the  juror. 

In  regard  to  the  sufficiency  of  the  exj^lanation  made 
by  the  member,  the  court  ought  to  have  considered  that 
it  was  not  a  denial,  but  in  some  degree  an  admission  of 
bias  and  prejudice,  qualified  l)y  the  member's  opinion 
that  it  could  not  influence  his  judgment  in  the  trial. 
This,  however,  was  the  matter  of  which  the  court  were 
to  judge  after  inquiring  into  the  nature  and  grounds  of 
his  feelings  toward  the  accused.  And  as  to  the  proof  in 
this  regard  the  law  allows  the  accused  the  testimony  of 
the  member  in  the  mode  he  demanded. 

The  refusal  of  the  coiu't  to  allow  the  accused  the  ben- 
efit of  the  necessary  legal  evidence  to  pro^'e  his  cause  of 
challens^e  would  have  set  aside  the  trial,  had  the  ver- 
diet  been  of  conviction."* 

*  G.  0.  No.  21,  July  27th,  1853. 


CHALLENGES    AI^D    OATHS.  ^3 

Having  maliciously  declared  an  opinion  unfavorable 
to  the  i^risoner,  is  a  good  cause  of  challenge.  A  jury- 
man was  set  aside  on  a  trial  for  liigli  treason,  because, 
when  looking  at  the  prisoners,  he  uttered  the  words 
"  damned  rascals."'"  This  would  hold  as  sufficient 
against  a  member  of  a  court.  The  rule  extends  still  fur- 
ther and  considers,  \\i.q  previous  expression  of  an  opinion 
on  the  case,  as  one  of  the  most  valid  causes  of  challeno;e 
that  can  be  urged.  An  officer  was  tried  by  a  court-mar- 
tial for  killing  another;  the  prisoner  challenged  one  of 
the  members  for  declaring  before  the  trial  came  on,  that 
he  deserved  to  die ;  this  was  proved  and  admitted  by  the 
court  to  be  a  just  and  reasonable  exception,  and  the  offi- 
cer was  dismissed,  and  another  sworn  in  his  room.f 

It  is  a  good  ground  of  challenge,  where  a  member 
has  been  injured  hij  the  accused^  and  for  which  act  the 
latter  is  brouo-ht  to  trial.     A  case  is  cited  in  which  an 

o 

officer,  whose  j^roperty  had  been  stolen,  was  by  inadvert- 
ence placed  as  a  member  on  the  trial.  The  prisoner  was 
found  guilty ;  but  the  sentence  was  remitted  because  of 
this  circumstance.^ 

It  is  a  good  cause  of  challenge,  when  a  member  will 
be  benefited  by  the  cashiering,  dismissal,  or  loss  of  rank 
of  the  accused,  should  he  be  liable  to  such  a  sentence  in 
the  event  of  his  conviction. 

The  officer  commanding  the  regiment,  post,  company 
or  detachment  to  which  the  accused  l)elongs,  may  be 
challenged  with  cause,  on  the  supposition,  that  i)reju- 
dice  may  exist  fi-om  previous  imperfect  or  exparte  kno^vl- 
edge  of  the  circumstances  inducing  the  trial,  or  that 

*  State  Trials,  O'Coigly.  \  Sime's  Military  Library,  voL  IV.,  p.  G4. 

X  Simmous,  p.  197. 


74  jflLITARY   LAW    AXD    COURTS-MAETIAL. 

he  had  taken  an  active  part  in  promoting  the  prose- 
cution or  in  bring-inoj  forward  the  charcre.  Althouo;h 
not  rendering  the  sentence  invalid,  his  sitting  on  the 
court-martial  is  an  inexpedient  proceeding. 

It  is  a  valid  cause  of  challenge  that  a  member  is  a 
material  witness^  and  summoned  as  such  on  the  trial ; 
but  if  required  to  give  evidence  as  to  character  only,  the 
objection  is  not  admitted.  If  a  member,  not  having  been 
challenged,  shall  have  taken  the  oath  and  his  seat,  and 
shall  in  the  course  of  the  trial  be  examined  as  a  material 
witness,  he  is  not  thereby  disqualified  from  discharging 
his  duty  as  a  member  of  the  court-martial;  circumstan- 
ces may,  however,  occur,  which  may  render  it  a  subject 
of  regret  that  the  duties  of  a  member  and  a  witness 
were  united,  as  the  cross-examination  is  often  calculated 
to  irritate.*  Besides,  there  is  the  further  objection  that 
he  not  only  hears  the  testimony  of  other  witnesses,  but 
is  actually  to  decide  between  the  degree  of  credit  to  be 
given  to  theii'  evidence  as  compared  with  his  own.  In 
such  a  case  the  member  should  be  authorized  to  ^vith- 
draw;  and  this  brings  up  the  question,  whether  chal- 
lenges can  be  entertained  and  admitted  after  the  mem- 
hers  have  been  sworn  f  The  ancient  severe  rule  was,  as 
expressed  by  Adye,  that  "  No  juror  can  be  challenged, 
without  consent^  after  he  hath  been  sworn,  whether  on 
the  same  day  or  on  a  former;  unless  it  be  for  some 
cause  that  happened  since  he  was  sworn."  The  more 
humane  and  reasonable  rule  now  j^revails  in  practice, 
that  there  is  no  reason  of  justice  or  of  common  sense 
that  should  preclude  a  prisoner  from  challenging,  on  suf- 
ficient cause,  any  of  the  members  after  the  court   is 

*  Simmons,  p.  198. 


CHALLENGES    AND    OATHS.  75 

sworn ;  provided  lie  liad  no  opportunity  of  moving  his 
objection  before  that  form  was  gone  tlirougli.  An  ob- 
jection cannot  be  said  to  be  waived,  wliicli  the  objector 
has  no  power  of  urging.* 

Therefore  a  challenge  to  a  mem1)er  for  good  and  suf- 
ficient cause  discovered  after  he  has  been  sworn,  must 
be  admitted  as  valid  by  courts-martial,  provided  the 
cause  was  not  known  to  the  prisoner  prior  to  his  ar- 
raignment. 

On  an  appeal  from  a  regimental  to  a  general  court- 
martial,  the  having  been  a  member  of  the  former,  from 
the  decision  of  which  an  appeal  has  been  made  to  the 
latter,  is  held  to  be  a  sufficient  cause  of  exception. 

It  is  a  valid  cause  of  challenge,  if  the  member  has 
been  one  of  a  couit-martial,  in  which  the  circumstances 
about  to  be  investigated  have  been  discussed  with 
direct  application  to  the  prisoner  about  to  be  tried.  The 
;  discussion  must  have  been  of  such  a  nature  as  to  involve 
his  guilt  or  innocence,  and  not  merely  incidental  and 
■s\athout  special  reference  to  the  accused.  It  must  be 
tantamount  to  the  expression,  or  at  least  formation,  of 
an  opinion  having  a  direct  bearing  on  the  present  trial. 

It  is  also  a  valid  ground  of  challenge,  for  a  member 
to  luLve  sat  on  a  court  of  inquiry  held  to  investigate  the 
subject  of  the  present  accusation,  whether  an  opinion 
upon  its  merits  had  been  given  or  not.  Militaiy  writ- 
ers, with  few  exceptions,  uphold  this  rule,  although 
courts  of  inquiry  in  the  British  service  do  not  elicit  evi- 
dence under  oath,  and  opinions  that  may  be  formed 
must  rest  on  data  of  doul^tful  credibility.  By  our  laws, 
all  testimony  before  such  courts  is  taken  under  oath, 

*  Tytler,  p.  231. 


76  MILITARY    LAW    AND    COUETS-MARTIAL. 

and  the  accused  lias  tlie  privilege  of  being  present,  and 
cross-examining,  and  of  introducing  witnesses  for  his  ex- 
culpation. With  such  testimony  thus  before  them,  it  is 
impossible  that  members  should  not  have,  unconscious- 
ly, formed  opinions,  even  though  the  oj^inion  of  the 
court,  not  being  required,  had  not  been  put  upon  the 
record. 

Neither  should  new  members  be  j)ermitted,  and  that 
fact  should  be  regarded  as  a  valid  cause  of  challenge. 
Though  they  may  have  heard  the  evidence,  and  the 
record  may  be  read  to  them,  and  be  carefully  studied, 
no  reason  or  argument  can  controvert  the  fact  that  it  is 
at  best  but  a  loose  and  doubtful  mode  of  procedure, 
not  altogether  compatible  with  the  strict  end  of  justice 
for  which  all  courts-martial  are  assembled.  In  the  mili- 
tary state  more  than  in  any  other,  should  every  avenue 
be  closed,  whence  may  proceed  the  slightest  misgivings 
that  even  in  the  forms  the  prisoner  may  not  have  re- 
ceived his  meed  of  justice.  A  soldier's  honor  should  be 
secured  and  guarded  by  all  the  ways  and  means  that  the 
severest  administration  of  the  laws,  either  as  to  form  or 
substance,  can  provide. 

SMpernunicrarics.  When  supernumeraries  are  de- 
tailed for  the  court,  they  are  liable  to  challenge,  in  the 
same  manner  and  for  the  same  causes  as  the  regular 
members..  This  is  both  right  and  proper,  as  the  supei'- 
riumerary  member  exercises  more  or  less  influencein  the 
discussion  of  questions  having  a  l)earing  on  the  trial, 
and  may  by  the  absence  of  a  regular  member  be  called 
upon  to  act  as  such  in  determining  the  verdict. 

Should  a  court  be  reduced  by  challenges,  heloiu  the 
■minimum^  an  adjournment  sine  die,  or  for  a  limited 


challe:n'ges  and  oaths.  77 

period,  follows,  and  the  facts  are  reported  to  the  author- 
ity that  convened  the  court,  who  may  dissolve  the  court 
and  order  a  new  detail  for  the  trial  of  the  prisoner. 
The  members  ^vho  composed  the  first,  may  make  part 
of  the  second  court,  but  they  are  liable  to  challenge 
with  the  new  members. 

The  ])roper  time  for  challenging  a  member  is  immedi- 
ately after  the  order  convening  the  court  has  been  read, 
and  before  the  court  is  sworn. 

OATHS. 

Defined.  An  oath  is  an  affirmation,  declaration,  or 
promise,  made  by  calling  on  God  to  witness  what  is 
said,  with  an  invoking  of  his  vengeance,  or  a  renuncia- 
tion of  his  favor,  in  case  of  falsehood.'^  This  imj^reca- 
tion  of  divine  vengeance  upon  perjury  is  considered 
essential  by  the  la^v,  and  upon  it  rest  the  force  and 
sanction  of  an  oath. 

Oath  taken.  After  the  challenges,  if  any,  and  before 
proceeding  upon  the  trial,  the  following  oath  must  be 
taken  by  all  the  members  of  a  court-martial,  whether 
general,  regimental,  or  gan-ison : 

"  You,  A.  B.,  do  swear,  that  you  will  well  and  truly 
try  and  determine,  according  to  evidence,  the  matter 
now  before  you,  between  the  United  States  of  America, 
and  the  prisoner  to  be  tried,  and  that  you  will  duly  ad- 
minister justice,  according  to  the  provisions  of  "  An  Act 
establishing  Rules  and  Articles  for  the  Government  of  the 
Armies  of  the  United  States,"  without  partiality,  favor, 
or  affection ;  and  if  any  doul)t  shall  arise,  not  explained 
by  said  articles,  according  to  your  conscience,  the  best  of 

*  Dr.  Worcester. 


78  MILITARY   LAW    AND    COUETS-ilARTIAL. 

your  understanding,  and  tlie  custom  of  war  in  like  cases ; 
and  you  do  further  swear  that  you  will  not  divulge  the 
sentence  of  the  court  until  it  shall  be  published  by  the 
proper  authority ;  neither  will  you  disclose  or  discover 
the  vote  or  opinion  of  any  particular  member  of  the 
court-martial,  unless  required  to  give  evidence  thereof, 
as  a  witness,  by  a  court  of  justice,  in  a  due  course  of  law. 
So  help  you  God."'^ 

The  first  part  of  the  oath  is  taken  in  their  caj^acity 
as  jui-ors,  and  binds  them  to  well  and  truly  trij  and  de- 
termine^ according  to  the  evidence.  This  obligation  ex- 
tends throughout  the  trial  including  the  verdict ;  after 
trying  the  case  by  applying  the  most  rigid  rules  to  the 
evidence  submitted,  they  determine  as  to  his  guilt  or  in- 
nocence according  to  the  evidence  admitted.  The  second 
part  refers  to  their  duties  as  judges,  binding  them  to 
administer  justice^  that  is,  to  j^ass  sentence  after  convic- 
tion— the  sentence  being  either  prescribed  or  discretion- 
ary. When  prescribed,  it  must  be  administered  accord- 
ing to  the  rules  and  articles  of  war — when  discretionary, 
according  to  their  consciences,  the  best  of  then-  under- 
standing, and  the  custom  of  war  in  like  cases,  should 
any  doul)t  arise  not  explained  by  said  articles.  The  re- 
mainder of  the  oath  contains  an  obligation  to  secrecy  as 
to  the  sentence  of  the  court,  and  as  to  the  vote  or  opin- 
ion of  any  particular  member  of  the  court-martial.  No 
sentence  of  a  court-martial  is  complete  or  final  until  it 
has  been  duly  approved,  and  until  so  acted  upon  by  the 
proper  authority,  it  is  but  an  oj^inion  which  is  sul)ject  to 
alteration  or  revision,  and  its  communication  would  an- 
swer no  ends  of  justice,  but  might  in  many  cases  tend  to 

*  69th  article  of  war. 


CHALLENGES    AND    OATHS.  79 

frustrate  tliem.  Witli  regard  to  tlie  vote  or  opinion  of 
any  particular  member,  the  obligation  to  secrecy  is  like- 
wise founded  on  tlie  wisest  policy.  The  officers  who 
compose  a  military  tribunal  are  in  a  great  degree  de- 
pendent for  preferment  and  indidgence  on  their  supe- 
riors, and  this  might  exercise  so  great  an  influence  on 
weak  minds  and  depraved  hearts,  as  to  lead  them  from 
the  direct  paths  of  justice,  were  this  not  best  obviated 
by  the  confidence  and  security  that  every  member  pos- 
sesses. 

Another  reason  of  a  yet  stronger  nature  is,  that  the 
individual  members  may  not  be  exposed  to  the  resent- 
ment of  parties  and  their  connections  by  the  sentences 
awarded.  In  the  course  of  their  duty,  it  may  be  ne- 
cessary daily  to  associate  with  persons  against  whom 
unfavorable  votes  and  opinions  have  been  given  on  a 
court-martial,  so  that  their  publicity  would  create  the 
most  dangerous  animosities,  ecpiady  fatal  to  the  peace 
and  security  of  individuals,  and  })rejudicial  to  the  pub- 
lic service." 

In  a  general  court-martial,  the  oath  is  administered 
by  the  judge  advocate ;  and  in  the  inferior  courts  by 
the  junior  memljer,  who  is  also  recorder  and  prosecutor, 
there  being  no  judge  advocate  allowed  them. 

As  soon  as  the  said  oath  has  been  administered  to 
the  respective  members,  the  ])resident  of  the  court  shall 
administer  to  the  judge  advocate  an  oath,  in  the  follow- 
ing words : 

"  You,  A.  B.,  do  swear,  that  you  ^vill  not  disclose  of 
discoxer  the  vote  or  opinion  of  any  particular  member 
of  the  court-martial,  unless  required  to  gi^'e  evidence 

*  Macomb,  p.  34. 


80  MILITARY    LAW    AND    COURTS-MAETIAL. 

tliereof,  as  a  witness,  by  a  court  of  justice,  in  due  course 
of  law ;  nor  divulge  the  sentence  of  the  court  to  any 
but  the  proper  authority,  until  it  shall  be  duly  disclosed 
by  the  same.     So  help  you  God."* 

Although  the  court  may  continue  to  be  composed  of 
the  same  individuals,  it  must  be  resworn  at  the  com- 
mencement of  each  trial,  where  several  prisoners  are  to 
be  tried  by  the  same  court,  whether  on  the  same  or  on 
different  charg-es. 

o 

'■'■  AW  2yer sons  ivlio  give  evidence  before  a  court-martial 
are  to  be  examined  on  oath  or  aflSrmation."f  Hence 
is  derived  the  power  and  authority  to  administer  an 
oath  to  every  witness ;  but  this  does  not  apply  to  persons 
examined,  before  the  court  itself  is  sworn.  By  the 
practice  of  courts-martial,  witnesses  are  sworn  T)y  the 
judge  advocate,  before  the  minor  courts  by  the  recorder, 
although  the  law  is  silent  as  to  w^ho  shall  administer  the 
oath — which  is  as  follows : 

"  You  swear,  or  affirm  (as  the  case  may  l)e),  the 
evidence  you  shall  give  in  the  cause  now  in  hearing 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth.     So  help  you  God." J 

Should  a  witness — being  an  officer  or  soldier — 
refuse  to  be  sworn,  he  may  be  ordered  into  arrest  or 
confinement,  to  answer  charges  that  may  be  j^referred 
against  him  for  contempt  of  court,  as  a  breach  of  good 
order  and  military  discipline. 

The  form  of  administering;  the  oath  has  nothing  to 
do  with  the  oath  itself,  and  yet  it  should  be  the  object 
of  courts-martial  to  ado2:)t  that  ceremony,  in  every  par- 
ticular case,  which  most  forcibly  imposes  the  obligation 

*  G9th  article  of  war.  f  *?nd  article  of  war.  \  Ibid. 


CHALLENGES    AND    OATHS.  81 

of  speaking  the  truth.  This  can  be  Lest  effected  by 
swearing  witnesses  according  to  the  i)articular  mode 
which  they  may  deem  most  binding  on  their  consciences. 

After  he  is  sworn,  the  witness  may  be  asked  if  he  con- 
siders the  oath  he  has  taken  binding  on  his  conscience. 
If  he  answers  affirmatively,  his  answer  is  conclusive. 
The  most  correct  and  j)roper  time  to  ask  for  the  infor- 
mation is  prior  to  his  taking  the  oath. 

A  witness  is  sivorn  hut  once  during  the  same  trial,  even 
when  called  to  testify  more  than  once,  by  either,  or  both 
parties ; — or  by  the  court  for  explanation. 
6 


CHAPTEE   IX. 

FOEMATION,  ADJOUENMENT,  AND  DISSOLU- 
TION OF  THE  COURT. 

When  a  court-martial  is  once  constituted  i>y  compe- 
tent autiiority,  it  continues  in  existence  until  dissolved 
by  tlie  same  or  superior  authority.  After  having 
arraigned  the  prisoner  ordered  to  be  tried,  it  cannot,  how- 
ever, be  dissolved  without  proceeding  to  judgment,  unless 
it  be  reduced  below  the  legal  number  by  the  death  or  pro- 
tracted illness  of  members.  Its  dissolution  may  also  be 
justified  by  the  j^rotracted  illness  of  the  prisoner,  in 
which  case  the  prisoner  would  be  exposed  to  a  future 
trial.  Should  his  death  put  a  stop  lo  the  trial,  the  fact 
must  be  established  by  evidence,  and  recorded,  prior  to 
the  final  adjournment  of  the  court. 

The  court  must  be  adjourned^  at  any  2:>eriod  of  its 
proceedings  ])rior  to  the  final  close  of  the  prosecution 
and  defence,  on  satisfactory  proof  of  an  army  surgeon  if 
one  is  to  be  had,  or  of  a  piivate  physician,  that  the  pris- 
oner is  in  such  a  state  that  his  health  -svould  l)e  seri- 
ously endangered  by  his  attendance  in  court. 

Should  illness  or  other  cause  prevent  a  member  from 
att<^nding  either  before  or  after  the  arraignment,  tlie 
court  may  adjourn  from  day  to  day  for  a  reasonable  time, 
to  await  his  attendance ;  and  should  the  seats  of  several 
members  be  permanently  vacated,  and  the  number  pres- 


FORMATION,    ADJOUEN.AIENT    AND    DISSOLUTION.  83 

ent  not  fiill  below  the  miuimum  of  five,  or  the  number 
otherwise  prescribed  by  the  order;  the  court  will  proceed 
with  the  trial.  AVhen  the  legal  complement  are  not 
present,  those  in  session  may  adjourn  from  day  to  day, 
but  as  they  cannot  constitute  a  court,  neither  can  tliey 
exercise  judicial  functions  in  the  performance  of  judicial 
acts.  If  a  court  be  reduced  l^elow  the  legal  minimum, 
it  may  adjourn  for  a  certain  period  or  sine  die^  accord- 
ing to  circumstances,  and  report  the  facts  to  the  con- 
vening authority,  who  is  competent  to  declare  tlie  court 
dissolved. 

Hours  of  Sci^sioii.  No  proceedings  of  trials  shall  be 
carried  on,  excepting  l)etween  the  hours  of  eight  in  the 
morning  and  three  in  the  afternoon,  excepting  in  cases 
which,  in  the  opinion  of  the  officer  appointing  the  court- 
martial,  require  immediate  example.* 

The  time  and  place  of  assemhling  of  a  court-martial, 
can  only  be  changed  by  the  authority  convening  the 
same,  and  whenever  it  becomes  necessary  or  expedient 
to  change  the  place  of  meeting,  authority  must  be 
granted  by  the  appointing  power,  on  proj)er  representa- 
tions made  to  him  l)y  the  court. 

Tiie  i>re<<iciin;;  ofticor  of  a  coui't-martial — besides  the 
duties  and  j)rivileges  of  member — is  only  its  organ.  He 
speaks  and  acts  for  it  in  each  case,  when  the  partic- 
ular rule  has  been  prescril)ed  by  law,  regulation,  or  its 
own  resolution.  He  announces  the  adjournment,  -when 
the  prescribed  hour  has  arrived.  He  cannot  adopt  an 
hour  different  from  that  which  has  been  ])rescribed, 
^vdtliout  the  approl^ation  of  a  majority  of  the  court 
when  in  session.     This  riulit  of  regulating  its  own  ses- 

*  Totli  article  of  war. 


84  MILITARY    LAW    AND    COURTS-MAETIAL. 

sions  is  important  and  necessary,  and  the  limitation 
placed  on  it  by  tlie  TStli  article  of  war,  was  obviously 
intended  to  secure  full  and  fair  deliberation.  In  this 
and  all  deliberations  of  the  court,  the  equality  of  the 
several  members  was  intended  to  be  preserved.* 

A  court  adjourns  from  day  to  day,  and  may  adjourn 
for  a  longer  period  if  demanded  l)y  the  necessities  of 
the  case.  When  the  court  adjourns  for  three  days,  the 
judge  advocate  shall  report  the  fact  to  the  commander 
of  the  post  or  troops,  and  the  members  belonging  to  the 
command  w411  be  liable  to  duty  during  the  time.  When 
a  court  adjourns  without  day,  the  members  will  return 
to  their  respective  posts  and  duties,  unless  otherwise  or- 
dered. 

Courts-martial  deliberate  in  secret,  and  at  the  request 
of  a  member,  of  the  judge  advocate,  or  of  his  own  mo- 
tion, the  presiding  officer  may  direct  the  court  to  be 
cleared  for  deliberation,  or  for  any  incidental  discussion. 
When  cleared,  no  one  is  present  besides  the  members 
and  the  judge  advocate.  At  other  times  the  court  is 
open  to  the  public. 

Votes.  All  questions  of  adjournment,  ttc,  are  de- 
cided by  a  majority  of  votes,  and  in  case  of  a  tie-vote, 
the  question  is  decided  either  affirmatively  or  negative- 
ly, according  as  it  has  been  put. 

Absence.  Should  a  member  of  a  court-martial,  for 
any  cause,  al)sent  himself  from  his  seat  pending  the  trial, 
the  question  arises,  can  lie  resume  it  ?  It  is  essentially 
necessary  that  the  testimony  of  witnesses  should  be 
evolved  in  jyresence  of  all  the  members,  as  no  act  can  be 
legal  that  is   performed  l)y  a  mere  j^art   of  the  court. 

*  G.  0.,  No.  14,  War  Department,  April  20th,  1S50. 


FOEMATIOX,  ADJOURNMENT,  AND    DISSOLUTION.  85 

Captain  Simmons  cites  a  case,*  in  wliicli  a  member  was 
permitted  to  resume  his  seat  after  being  absent  one  day. 
The  reviewing  officer  said :  "  This  proceeding  is  so  direct- 
ly at  variance  with  the  practice  of  coiii-ts-martial  and 
the  principles  of  justice,  that  it  may  be  held  to  affect 
the  legality  of  the  judgment  of  the  court,"  and  con- 
cludes his  remarks  by  stating  that  "the  irregularity,  be- 
fore observed,  has  rendered  nugatory  the  sentence  of  the 
court-martial."  The  occasional  withdrawal  of  a  mem- 
ber for  a  time,  however  limited,  must  suspend  the  exam- 
ination of  a  witness ;  whatever  is  in  itself  unjust  and 
irregular  should  not  be  tolerated  even  in  the  slightest 
degree.  It  is  for  this  reason  that  supernumeraries  are 
required  to  be  present  throughout  the  sessions  of  the 
court,  that  they  may  be  properly  qualified  to  fill  a  va- 
cated seat  at  any  moment  during  the  trial. 

There  is  no  doubt  that  in  justice  the  absent  member 
should  not  resume  his  seat.  But  who  is  to  decide  the 
matter,  and  has  the  court  the  power  to  exclude  the 
member  \  The  opinion  of  Mr.  Attorney-General  Gush- 
ing, in  a  case  that  occurred  in  the  navy,  throws  light 
upon  the  subject.  He  says.  It  is  true  that,  not  having 
heard  a  portion  of  the  witnesses  testify,  so  as  to  judge 
of  their  credibility  from  their  appearance  and  manner 
of  testifying,  he  was  without  some  of  the  means  of 
proper  judgment.  Suppose  he  had  been  absent  during 
a  protracted  and  complicated  trial,  and  came  in  on  the 
last  day  to  hear  the  arguments,  not  having  heard  the 
testimony  at  all,  could  he  properly  have  a  voice  in  the 
finding  ?  This  could  hardly  be.  But  the  length  of  ab- 
sence determines  nothino;. 

*  Page  208. 


80  MILITARY    LAW    AND    COUETS-MARTIAL. 

However  tliis  may  be,  wlietlier  tlie  absent  member 
sLall  act  or  not  U2:)on  liis  return,  must  depend  on  his 
own  views  of  jiropriety,  and  not  upon  those  of  the 
court,  which  is  nowhere  clothed  with  j^ower  to  expel  a 
fellow  member.  When  the  court  is  organized,  the  ques- 
tions before  them  relate  to  the  accused,  and  not  to  the 
qualifications  of  their  brother  members,  of  which  they 
have  no  jurisdiction.  I  think  they  had  no  authority  to 
exclude  him  from  a  seat  in  the  court. 

This  view  of  the  powers  of  a  court-martial  is  contrary 
to  the  universal  practice  in  such  cases.  True,  the  arti- 
cles of  war  only  authorize  courts  to  determine  the  rele- 
vancy and  validity  of  diallenges,  and  to  decide  thereon, 
but  this  takes  place  during  its  organization,  and  before 
they,  by  their  oath,  assume  their  judicial  jDowers,  and 
by  no  article  of  war  is  the  power  conferred  on  the  court 
to  punish  its  own  members.  It  is  unusual,  in  the  prac- 
tice of  all  courts  of  justice,  for  judges  who  have  not 
heard  the  whole  trial,  to  participate  in  giving  judg- 
ment ;  but  there  is  no  law  to  prohiljit  them  from  doing 
so,  or  to  compel  them  if  they  refuse.  Courts-martial 
then  decide  on  such  cases  by  authorit}^  of  custom  of  ser- 
vice, and  not  by  powers  granted  by  statute,  and  as  such 
custom  is  not  prohibited  by  law,  and  has  received  the 
sanction  of  time,  practice  and  military  writers,  and  as  its 
continuance  contributes  largely  to  the  exhibition  of  fiiir- 
ness  in  the  administration  of  justice,  the  present  prac- 
tice should  remain  undisturbed.* 

The  absence  of  the  j^idge  advocate^  at  any  time  during 
the  ])rogress  of  the  trial,  does  not  invalidate  the  pro- 
ceedings, and  he  may  resume  his  duties  at  any  moment. 

*  Opinions,  April  Uth,  1855. 


I 


ADJOURNMENT,  AND    DISSOLUTION.  8*7 

Application   for   delay  or  poKlponeinent  of  trial    must, 

when  practicable,  be  made  to  the  authority  convening 
the  court.  When  made  to  the  court,  it  nuist  be  before 
plea,  and  will  then,  if  in  the  opinion  of  the  court  well 
founded,  be  referred  to  the  authority  convening  the 
court,  to  decide  whether  the  court  should  be  adjourned 
or  dissolved,  and  the  charges  reserved  for  another 
court.* 

Upon  apjilication  l)y  the  accused  for  postponement 
on  the  ground  of  the  absence  of  a  witness,  it  ought  dis- 
tinctly to  appear  on  his  oath,  1st,  that  the  witness  is 
material,  and  how ;  2d,  that  the  accused  has  used  due 
diligence  to  procure  his  attendance ;  and  3d,  that  he  has 
reasonable  ground  to  believe,  and  does  believe,  that  he 
A\dll  be  al)le  to  procure  such  attendance  within  a  reason- 
able time  stated.f  When  such  an  aj^plication  is  made 
on  the  part  of  the  prosecution,  courts-martial  are  less 
ready  to  grant  it  than  when  requested  by  the  accused, 
because,  as  the  government  can  fix  its  own  time  for 
holding  the  trial,  there  is  no  excuse  for  want  of  prepara- 
tion in  any  2)articular.  The  postponement  or  suspension 
of  proceedings  in  either  case,  cannot  be  demanded  as  a 
right,  and  the  court  may  in  its  discretion  grant  or  refuse 
the  apijlication. 

*  Revised  G.  R.,  p.  124  f  Ibid.,  p.  125. 


CHAPTER   X. 
OF  THE  TRIAL  AND  ITS  INCIDENTS. 

Ix  tliose  numerous  incidents  of  their  constitution  and 
mode  of  action,  concerning  whicli  the  statute  rules  are 
silent,  courts-martial  are  to  be  governed  by  the  general 
principles  of  military  law,  recuiTing  to  adjudged  cases, 
precedents  ruled,  authoritative  legal  opinions,  and  ap- 
proved books  of  legal  exposition.^ 

Detail.  The  trial  of  an  officer  or  soldier  against 
whom  charges  have  been  preferred,  having  been  consid- 
ered necessary,  a  warrant  issues  from  the  proper  author- 
ity for  the  assembling  of  a  coui-t-martial.  The  warrant 
details  the  members  and  judge  advocate  ^^ho  are  to 
compose  it,  as  well  as  the  time  and  place  of  meeting. 
In  the  detail  the  members  will  be  named,  and  they  will 
take  place  in  the  court,  in  the  order  of  their  rank.  A 
decision  of  the  proper  authority  in  regard  to  the  rank 
of  the  members  cannot  be  reversed  by  the  court. 

The  court  having  assembled.,  the  names  of  the  mem- 
bers are  called  over  by  the  judge  advocate,  and  they 
take  their  seats  according  to  rank. 

The  court  is  then  proclaimed  open,  and  the  parties  in 
the  cause  are  introduced. 

In  those  cases  where  the  court  may  desire  to  forhid 
the  puUication  of  the  proceedings,  the  president  gives 

*  Attorney-general's  opinions,  January  31st,  1857. 


THE    TRIAL    AND    ITS    INCIDENTS.  89 

notice  to  that  effect ;  and  a  military  man  might  he  tried 
for  disobedience  of  orders,  shoidd  he  publish  any  por- 
tion of  the  same  after  such  prohilntion. 

Order  Read,  &c.  The  order  convening  the  coui-t  is 
noAV  read  by  the  judge  advocate,  and  if  the  latter  be 
appointed  l)y  a  special  warrant,  or  if  subsequent  orders 
have  changed  the  original  detail,  they  will  likewise  be 
read,  in  an  audible  voice,  within  hearing  of  the  prisoner. 
The  judge  advocate  then  asks  the  prisoner  whether  he 
objects  to  be  tried  by  any  of  the  members  present 
named  in  the  order,  and  if  so  to  present  his  cause  of 
challenge.  Peremptory  challenges  not  being  permitted, 
the  accused  must  state  his  reasons  in  writing,  or  they 
may  be  recorded,  as  stated,  by  the  judge  advocate. 
Where  tAvo  or  more  members  are  challenged,  they  must 
1)6  objected  to  in  the  order  of  their  rank,  commencing 
with  the  s(niior,  one  member  l)eing  challenged  at  a  time, 
and  each  individual  case  settled  by  the  court  before  en- 
tering upon  another.  In  all  cases  where  the  vote  is 
equally  divided,  the  decision  is  given  in  favor  of  the 
party  challenging. 

Charges.  When  all  the  objections  have  been  acted 
upon,  and  there  remains  a  legal  numljer  of  members 
comj^etent  to  proceed  with  the  trial,  the  charges  and 
specifications  preferred  against  the  prisoner  are  read  for 
the  information  of  the  court.  This,  though  not  the 
practice  of  courts-martial,  is  deemed  essential,  as  it  for- 
mallv  brino-s  l)efore  the  court  the  matter,  touchins; 
which  they  are  al)out  to  swear  that  they  \\'ill  well  and 
truly  try  and  determine. 

The  officer  wlio  a])poInts  the  court  finds  the  "true 
bill"  of  indictment,  but  the  judge  advocate,  as  prosecu- 


90  :\riLTTAEY    LAAV    AND    COURTS-ZMARTIAL. 

tor  for  tlie  United  States,  has  official  right  to  make  the 
charges  technically  correct.  When,  however,  in  the  judge 
advocate's  opinion  the  facts  specified  constitute  one 
offence,  and  in  the  opinion  of  the  convening  authority 
they  constitute  another,  it  becomes  a  question  as  to 
whose  opinion  shall  govern. 

"  In  recent  orders  from  the  head-quarters  of  a  depart- 
ment, the  arraignment  and  consequent  trial  of  certain 
named  soldiers,  before  a  general  court -martial,  ordered 
'  for  the  trial  of  such  persons  as  may  be  properly  bi'ought 
before  it,'  is  pronounced  illegal^  as  '  not  having  been  au- 
thorized by  the  department  commander'  —  the  charges 
not  having  been  forwarded  from  department  head- 
quarters, but  preferred  on  the  spot. 

"  It  is  not  deemed  safe,  or  consistent  with  the  interests 
of  military  discij^line,  to  allow  this  ruling  to  pass,  uncjues- 
tioned,  into  a  precedent. 

"  The  orders  were  in  the  usual  form,  nor  limited  l)y 
any  accompanying  instructions.  Under  such  orders,  it 
has  been  the  long-standing  and  general  practice  of  the 
service,  for  a  court-martial,  in  its  discretion,  to  try  offend- 
ers against  whom  charges  are  presented,  through  the 
judge  advocate,  by  the  highest  authority  on  the  spot. 
The  custom  seems  as  reasonable  as  convenient,  and  can 
only  be  cpiestioned  l>y  a  negative  inference  from  the 
silence  of  the  law.  It  invades  no  rights,  but  protects 
the  right  of  speedy  trial.  It  saves  expense,  empties  the 
guard-house  and  makes  punishment  effective  by  jirompt- 
ness. 

"  Should  the  authority  instituting  a  court-martial  dis- 
regard these  considerations,  and  limit  the  court  to  the 
trial  of  certain  named  cases  or  of  a  certain  class  of  cases. 


THE   TRIAL    AND    ITS    USTCIDENTS.  91 

a  specific  form  of  order  slionld  tlieii  be  used  to  express 
its  intentions.""''' 

Additional  cimrses.  The  convening  autliority  is  not 
only  competent  to  alter  and  amend  the  original  charges, 
at  any  time,  antecedent  to  the  arraignment,  but  also  to 
prefer  additional  charges  and  specifications  against  the 
prisoner.  The  latter  has  the  right  to  due  notice  of  the 
additional  charges,  as  well  as  to  any  material  alterations 
in  the  original  ones,  before  being  called  to  plead.  Sub- 
sequent to  the  aiTaignment,  no  additional  charges  can 
be  entertained,  either  referring  to  the  points  in  issue  or 
to  a  distinct  ofl:ence.  This  is  based  u2:)on  the  practice 
of  courts-martial,  and  on  the  very  words  of  the  oath 
taken  by  each  meml)er :  "  You  will  well  and  truly  try 
and  determine,  according  to  evidence,  the  matter  noio 
before  you."  For  any  offence  committed  either  prior  or 
subsequent  to  his  arraignment,  unconnected  with  the 
subject  matter  in  issue,  the  ])risoner  is  certainly  amena- 
ble; but  the  offence  must  form  the  subject  of  a  se])arate 
charge  and  specification,  and  the  trial  be  distinct — tried 
by  the  same,  or  by  another  court-martial.  The  follow- 
ing bears  directly  upon  this  suT)ject. 

"  The  action  of  the  court  in  declining  to  try  the  addi- 
tional charges  against  (the  prisoner),  on  the  gi'ound  that 
he  li;i<l  already  been  tried  by  the  court,  and  that  all  the 
means  of  2)unishment  at  its  disposal  had  been  exhausted 
in  the  sentence  passed  at  that  trial,  is  not  approved. 
The  accused  was  amenable  to  trial — subject  to  the  legal 
limitation — while  he  remained  in  the  service,  and  he 
was  entitled  to  it  as  speedily  as  possible.  The  court 
could  not  know,   in   anticipation  of  the  orders  of  the 

*  G.  0.  Xo.  7,  Uead-Quartcr.s  of  the  army,  May  20th,  1857. 


92  MILITAKY    LAW    A^'D    C0URTS-:MAETIAL. 

reviewing  authority,  that  the  first  trial  would  not  result 
in  the  prisoner's  continuance  in  service ;  neither  could 
it  assume  that  the  trial  of  the  additional  charges  would 
not  result  in  an  acquittal.""' 

Court  SAvorn.  The  accused  being  in  attendance,  the 
judge  advocate  proceeds  to  administer  the  oath  as  pre- 
scribed by  the  69th  article  of  war;  after  which  the  pres- 
ident swears  the  judge  advocate. 

Tlie  record  must  show  that  the  court  was  organized 
as  the  law  requires ;  that  the  court  and  judge  advocate 
xcere  duly  sicorn  in  the  presence  of  the  prisoner ;  that  he 
was  previously  asked  whether  he  had  any  objection  to 
any  member,  and  his  answer  thereto.  A  coj^y  of  the 
order  appointing  the  court,  will  be  entered  on  the  record 
in  each  case. 

It  was  declared  in  the  case  of  Peter  Clark,  a  seaman 
in  the  navy,  that  the  proceedings  were  "  irregular  and 
void,"  l)ecause  it  did  not  appear  on  the  recoi'd  that  the 
judge  advocate  had  l)een  sworn  agreealdy  to  the  law. 
"  The  maxim  well  applies,  that  that  which  does  not  ap- 
pear should  l)e  considered  as  not  existing ;  and  when  it 
is  considered  that  he  is  to  keep  the  record  of  the  evi- 
dence o:iven,  and  the  proceedings  of  the  court ;  and  that 
upon  this  evidence  and  ^proceedings  as  recorded  l\y  him, 
the  fate  of  the  accused  is  ultimately  to  be  decided,  every 
reflecting  mind  would  concur  in  saying  that  the  fidelity 
of  this  oflicer  should  be  secured  by  the  usual  sanc- 
tions."t 

It  was  also  decided  in  the  case  of  INIidshipman  Guthrie, 
that  the  justice  and  propriety  of  administering  the  oath 

*  0.  Xo.  20,  Head-Quartors  Department  of  Texas,  June  5th,  1855. 
f  Attorney-general's  opinions,  Dec.  24th,  1838. 


THE   TRIAL    AND    IT8    IISXIDENTS.  93 

to  the  jiulge  advocate,  are  not  less  apparent  tliau  its 
necessity  in  point  of  law.* 

And  again ;  by  the  69tli  article,  it  is  required  tliat 
the  members  of  the  court  sliall  take  an  oath  "  well  and 
truly  to  try  and  determine,  according  to  evidence,  the 
matter  now  before  you,  l^etween  the  United  States  of 
America,  and  the  lyrisonev  to  he  trieciy  On  this  point 
the  record  is  silent ;  it  does  not  show  that  the  members 
composing  the  court,  acted  under  tlie  oUlyatlona  of  an 
oath,  as  the  law  requires  shall  be  the  case.  It  is  not 
presuinalde  that  so  essential  a  circumstance  was  over- 
looked by  the  court ;  Ijut  be  this  as  it  may,  it  is  a  mat- 
ter not  open  to  explanation  and  proof  The  law  reipiir- 
ing  that  the  court  shall  act  upon  oath,  that  it  was  so 
done  must  be  rendered  manifest  l)y  the  record  itself,  and 
can  be  made  apparent  in  no  other  way.  In  this  view, 
then,  the  ])roceedings  are  defective;  so  much  so,  that  a 
judgment  cannot  be  pronounced  upon  theni.f 

In  regimental  and  garrison  courts-martial,  there  being- 
no  judge  advocate  a})pointed,  the  junior  member,  who 
is  also  recorder,  administers  to  the  members,  himself 
included,  the  same  oath  that  is  prescribed  for  the 
meml)ers  of  a  general  court-martial ;  and  as  this  oath 
enforces  secrecy,  the  recorder  does  not  take  the  par- 
ticuhir  oath  prescribed  for  the  judge  advocate. 

Whenever  the  same  court-martial  tries  more lyrisoners 
than  one^  and  they  are  arraigned  on  separate  and  dis- 
tinct charges,  the  court  is  to  be  sworn  at  the  commence- 
ment of  each  trial,  and  the  proceedings  in  each  case  will 
be  made  up  separately. 

*  Opinions,  June  9th,  IS-IO. 

f  War  Department,  Sept.  29th,  1829. 


94:  MILITARY    LAW    AND    COUKTS-MAETIAL. 

If  the  prisoner  or  judge  advocate  desire  a  ijostpone- 
ment  of  the  trial,  the  application  must  now  be  made. 
It  is  essential  that  courts-martial  should  have  a  thor- 
ough knowledge  of  the  matter  to  Le  investigated,  and 
have  assumed  the  judicial  character  by  being  sworn,  be- 
fore deciding  on  the  necessity  of  delaying  proceedings. 
Circumstances  may  arise  during  the  progress  of  the  trial, 
when  a  temporary  adjournment,  even  to  the  extent  of 
several  days,  might  materially  further  the  proper  devel- 
opment of  the  case,  still,  if  practicable,  all  applications 
shoul  ^  be  made  prior  to  the  arraignment. 

Counsel.  At  this  stage  of  the  proceedings,  though  it 
may  be  permitted  at  any  time,  the  accused  makes  his 
request  for  the  privilege  of  introducing  his  counsel. 

Arracgjiiiieiit.  Tli  /  charges  and  specifications  are  now 
read  to  the  prisoner,  in  ojoen  court,  by  the  judge  advo- 
cate, who  arraigns  him  in  the  following  terms :  "  Cap- 
tain A.  B.,  —  regiment  of ,  you  have  heard  the 

charges  and  specifications  preferred  against  you ;  how 
say  you — guilty  or  not  guilty  T  The  pleas  are  made  to 
the  specifications  to  each  charge  in  their  order,  and  then 
to  each  charge. 

Pleas.  The  ordinary  plea  is,  not  guilty,  l)ut  the  ac- 
cused may  plead  in  bar  of  trial,  or  plead  guilty,  or  stand 
mute. 

standing  Mute.  When  a  prisoner,  arraigned  before  a 
general  court-martial,  shall,  from  obstinacy  and  deliber- 
ate design,  stand  mute,  or  answer  foreign  to  the  pui*pose, 
the  court  may  proceed  to  trial  and  judgment,  as  if  the 
prisoner  had  regularly  pleaded  not  guilt}\* 

In  all  cases  Avhere  the  prisoner  does  stand  mute,  it  is 

*  TOth  article  of  war. 


THE    TRIAL    AND    ITS    INCIDENTS.  95 

tlie  duty  of  tlie  eoiii-t  to  determine,  before  proceeding  to 
trial,  wlietlier  this  is  not  the  result  of  obstinacy  or  delib- 
erate design.  The  court  may  find  that  the  prisoner  is 
insane,  in  which  case  no  farther  proceedings  can  be  had, 
and  the  court  must  assign  the  insanity  as  a  reason  for 
not  continuing  the  trial.  And  if,  at  any  time  during 
the  trial,  it  appears  that  the  prisoner  is  insane,  all  fur- 
ther proceedings  must  cease  for  the  same  reason.  If  the 
prisoner  is  found  mute  by  the  visitation  of  God^  the 
court  will  proceed  with  the  trial  only  when  the  prisoner 
is  of  competent  intelligence,  and  can  be  made  to  under- 
stand the  proceedings  and  evidence,  and  can  also  com- 
municate, by  means  of  writing  or  conventional  signs. 
Still  it  is  a  point  yet  undetermined,  whether  judgment 
of  death  can  be  given  against  one  who  hath  never  plead- 
ed, and  who  can  say  nothing  in  arrest  of  judgment.'^* 

Pleading  Ouiity.  If  the  j)risoner  pleads  "  guilty"  in 
open  court,  no  evidence  can  be  taken  on  the  part  of  the 
prosecution,  l)ecause  no  issue  is  made.  Every  thing  al- 
leged is  admitted,  and  evidence  is  only  needed  for  de- 
ciding a  matter  in  dispute.  Such  a  plea,  however,  nei- 
ther precludes  on  the  part  of  the  accused  the  production 
of  evidence  as  to  fact  and  character,  nor  is  it  a  bar  to  his 
making  a  written  defence  in  extenuation  of  his  offence, 
or  in  mitigation  of  })unisliment.  The  oliject  of  his  plea 
may  be  to  confine  the  notice  of  the  court  to  the  alleged 
crime  as  it  stands  on  the  face  of  the  charge,  and  he  has 
a  right  to  any  l)enefit  flowing  therefrom.  Having  plead- 
ed guilty,  the  accusation  may  be  considered  as  virtually 
proved  and  the  prosecution  closed,  as  by  the  constitu- 
tion, a  confession  in  open  court — for  treason,  the  most 

*  -4  Blackstone,  p.  524. 


96  MILITAEY   LAW   AND    COURTS-MAETIAL. 

flagrant  political  crime — is  held  to  be  equivalent  to  tlie 
testimony  of  two  witnesses.  The  practice  of  our  courts 
now  is,  to  warn  the  accused  of  the  consequences  of  such 
a  plea,  and  to  admit  all  evidence  on  his  part  in  mitiga- 
tion or  explanation  of  his  conduct,  whether  as  to  fact  or 
character.  The  right  of  cross-examination,  of  course, 
exists  on  the  pai't  of  the  j^rosecution. 

Where  the  prisoner  pleads  guilty  to  the  specifications, 
but  not  guilty  to  the  charge,  no  evidence  is  admitted  to 
prove  the  allegations  contained  in  the  specification,  be- 
cause they  are  not  denied.  The  prosecution  may,  by 
argument,  attempt  to  show  that  the  allegations  admitted 
by  the  ])risoner  do  prove  the  crime  charged.*  As  in 
the  case  of  pleading  guilty  to  the  whole  accusation,  the 
accused  may  introduce  evidence  to  excuse  or  palliate  his 
conduct.  The  accused  may  also  plead  guilty  to  certain 
portions  of  a  sj^ecification,  and  not  guilty  to  the  remain- 
der of  it. 

Pleas  iu  Bar  of  Trial.  These  may  be,  either  to  the 
jurisdiction  of  the  court,  or  what  are  termed  special 
pleas. 

To  tiic  Jurisdiction.  A  prisoner  pleading  to  the  juris- 
diction of  the  court,  may  allege  that  he  is  no  soldier,  or 
not  amenalde  to  a  court-martial;  or  that  he,  being  a 
soldier,  is  arraigned  before  a  court-martial  for  a  civil 
crime;  or  brought  for  trial  before  an  inferior  com-t,  for 
a  crime  made  cognizable  by  a  general  court-martial  under 
the  articles  of  war;  or  arraigned  before  a  court  not  legally 
constituted  either  as  to  the  authority  which  convened 
it,  or  as  to  the  number  of  its  members;  and  for  these 
causes  may  take  exception  to  the  jurisdiction  of  the 

*  O'Brien,  p.  251. 


THE    TEIAL    AND    ITS    INCIDENTS.  97 

court-martial.  Wlien  tLese  or  like  causes  exist  to  make 
the  jurisdiction  doubtful,  the  accused  sliould  plead  ac- 
cordingly. 

Special  Pleas.  A  special  plea  in  bar  of  trial,  presents 
to  tlie  court  a  reason  why  the  accused  should  not  be 
called  on  to  answer  to  the  charge,  nor  be  tried  for  the 
oftence  alleged. 

1st.  A  former  acquittal,  or  a  former  conviction  before 
any  court-martial  of  competent  jurisdiction.  These  are 
made  valid  pleas  in  bar,  and  are  authorized  by  the  last 
clause  of  the  SYth  article  of  war,  which  enacts  that  no 
officer,  tfec,  "shall  be  tried  a  second  time  for  the  same 
offence,"  and  by  article  V.,  Amendments  to  the  Consti- 
tution, wdiich  provides  that  no  person  shall  be  "  subject 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life 
or  liml)." 

The  plea  of  autrefois  acquit,  or  a  former  acquittal,  is 
grounded  on  this  universal  maxim  of  the  common  law 
of  England — that  no  man  is  to  be  brought  into  jeopardy 
of  his  life  more  than  once  for  the  same  offence.  The 
plea  oi  autrefois  convict,  or  a  former  conviction, /t*;'  tlie 
same  identical  crime,  though  no  judgment  was  ever 
given  or  perhaps  will  be  (being  sus^^ended  by  the  ben- 
efit of  clergy  or  other  causes),  is  a  good  plea  in  bar  to  an 
indictment.  Yet  in  many  instances,  where,  contrary  to  evi- 
dence, tlie  jury  have  found  the  ])risoner  guilty,  their  ver- 
dict hath  been  mercifully  set  aside,  and  a  new  trial  grant- 
ed, <fec.  But  there  hath  been,  yet,  no  instance  of  granting 
a  new  trial,  ichere  the  prisoner  was  acquitted  on  the  first* 
From  this  it  follows,  that  former  acquittals  and  con- 
victions are  valid  pleas  in  bar  of  trial,  and  that  a  second 

*  Blackstoue,  4,  p.  33G. 


98  MILITARY    LAW    AND    COURTS-MAETIAL. 

trial  on  charges  upon  wliicli  lie  has  been  previously  con- 
victed, can  only  be  ordered  and  held  for  the  benefit  of 
the  prisoner  and  upon  his  own  motion.  The  law  was 
devised  purely  for  his  benefit,  and  can  never  by  any 
possibility  operate  against  him.  It  must  also  be  consid- 
ered that  the  plea  is  his  privilege,  to  be  exercised  or  not 
at  his  own  pleasure,  and  if  the  accused  makes  no  use  of 
it,  the  court  cannot  take  cognizance  of  it  in  order  to  bar 
the  trial.  The  plea  of  the  prisoner  alone  can  put  the 
previous  trial  in  issue,  otherwise  the  action  of  the  court 
cannot  be  judicially  directed  to  it. 

The  question  arises,  wliat  constitutes  a  former  acquit- 
tal or  former  conviction  f  Formerly  it  was  considered 
to  be  nothing  more  or  less,  than  the  trial  and  conviction 
or  acquittal  of  an  officer,  non-commissioned  officer,  sol- 
dier, or  follower  of  the  army,  by  a  legally  constituted 
court-martial  of  competent  jurisdiction,  with  the  "  con- 
firmation" of  the  reviewing  authority."^ 

Recent  decisions  seem  to  have  somewhat  modified,  on 
principle,  the  old  laws  of  the  books,  or  text  writers  on 
autrefois  convict  and  autrefois  acquit.  At  one  time 
verdict  upon  good  indictment  was  required.  At  the 
present  day  verdict  is  not  necessary.  It  is  sufficient,  if 
the  accused  lias  heen  put  on  trial  on  a  valid  indictment  j 
if  he  has  pleaded  and  been  given  in  charge  to  the  jury  ; 
and  if  .there  he  no  vcdid^  legcd  objection  to  proceeding  to 
judgment.  If  mere  "disapproval"  by  the  reviewing 
authority  could  annihilate  the  trial,  or,  after  the  prosecu- 
tion had  begun,  new  trials  could  be  ordered  indefinitely, 
the  fate  of  the  accused  would  remain  un2:)rotected  in  the 
hands  of  an  unscrupulous  superior,  who,  l)y  packing  a 

*    *  Opinions,  Sept.  l-ith,  1818,  and  G.  0.  Xo.  2,  War  Dept.,  Jan.  IStli,  1844. 


THE    TRIAL   AND    ITS    INCIDENTS.  99 


court  to  do  liis  Lidding,  niiglit  bring  to  undeserved  pun- 
islinieiit  tlie  most  innocent  of  his  inferiors. 

In  Captain  Van  Bokkelin's  case,  tlie  court  found  liiiu 
guilty  of  the  1st  and  2d  charges^  and  sentenced  liini  to 
be  cashiered ;  these  charges  being  sustained  by  the  i)lea 
of  the  accused,  and  by  the  evidence  of  the  prosecution. 
But  it  appearing  that  the  court  had  rejected  legal  evi- 
dence offered  by  the  defence,  in  refusing  to  allow  the 
witness  to  be  sworn  upon  evidence  which  did  not  go  to 
his  competency  at  all,  and  which,  even  as  going  to  his 
credi1)ility,  was  not  in  legal  form,  the  secretary  of  war 
decided  that  the  accused  was  entitled  to  a  new  trial  for 
the  benefit  of  the  evidence  ruled  out,  should  he  claim 
it.  "  He  will  therefore  be  allowed  to  say  whether  he 
abides  the  verdict  and  sentence  on  the  1st  and  2d 
charges,  or  claims  a  new  trial  on  them."  The  accused 
demanded  a  neAV  trial  on  them,  which  was  granted,  and 
the  court  found  him  guilty  of  both  charges,  and  sentenced 
him  to  be  cashiered;  which  sentence  was  confirmed  by 
the  President  of  the  United  States.* 

A  new  trial  cannot,  then,  be  ordered,  unless  for  the 
benefit  of  the  accused  and  upon  his  oion  motion  ;  and,  as 
a  general  rule,  the  mere  arraignment  and  pleading  upon 
the  same  charges  before  a  court-martial,  is  a  valid  plea 
in  bar  of  another  trial  for  the  same  offence. 

A  distinction  must  here  be  made,  however,  between 
the  illegal  act  of  a  legal  court,  and  the  act  of  an  illegal 
court.  In  the  former  case,  the  accused  cannot  be  again 
put  upon  his  trial  for  the  same  offence ;  in  the  latter  he 
can,  l:»ecause  the  act  of  an  illegal  court  is  void,  being 
the  act  of  no  court  at  all. 

*  G.  0.  No.  18,  War  Department,  May  8th,  1861. 


100  MILITARY    LAW    ATs^D    COUETS-MAETIAL. 

A  mere  arrest  of  an  officer  and  liis  discliarge  without 
trial,  is  not  a  valid  plea  in  bar.  In  tlie  case  of  Lieuten- 
ant Gassaway,  wlio  was  tried  in  July,  1819,  lie  jitleaded 
in  bar,  a  former  arrest  on  tbe  same  charges  and  a  dis- 
charge witlwut  trial.  His  plea  was  not  well  founded,  as 
appears  by  the  opinion  of  Mr.  Attorney-General  Wirt, 
who  states  that  the  fifth  amendment  to  the  constitution 
provides  that  no  person  shall  be  subject  for  the  same 
offence,  to  be  twice  put  in  jeopardy  for  life  or  limb. 
But  a  mere  arrest,  even  in  cases  punishable  in  life  or 
limb,  is  not  considered  as  constituting  this  jeopardy. 
The  principle  is  derived  to  us  immediately  from  the 
common  law.  It  is  a  maxim  of  this  law,  that  a  man 
shall  not  be  brought  into  danger  of  his  life  more  than 
once  for  the  same  offence  ;  but  to  give  the  benefit  of  this 
maxim,  it  is  necessary  that  he  should  have  been  actually 
acquitted  ov  convicted  on  a  former  tricd^  and  the  record  of 
this  fact  must  be  produced.'^ 

\  A  former  acquittal  or  conviction  of  an  act,  hy  a  civil 
courts  is  not  a  good  plea  in  bar  before  a  court-martial 
on  charges  and  specifications  covering  the  same  act. 
The  whole  ground  is  covered  by  the  incidents  of  the 
trial  of  Captain  Howe.  He  was  charged  with  "  conduct 
l^rejudicial  to  good  order  and  military  discij^line,"  in 
cruelly  beating,  kicking,  and  maltreating  a  private 
soldier  belonging  to  his  command,  on  the  6th  December, 
1839,  and  with  this  aggravation,  "all  of  which  cruelty 
did  cause  the  death  of  said  private,  James  Jones,  of 
troop  G,  2d  dragoons." 

The  court-martial  convened  in  April,  1840.  The 
second  special  plea  in  bar  of  trial,  presented  by  the 

*  Opinions,  vol.  I.,  p.  294. 


THE    TRIAL    AND    ITS    INCIDENTS.  101 

accused,  was  to  the  effect  tliat  the  charges  against  him 
were  not  proper  to  be  tried  by  a  court-martial,  ])ut  only 
by  a  civil  court,  and  that  the  offence,  if  committed  at  all, 
was  committed  within  the  county  of  St.  John's,  E.  R, 
and  that  the  superior  court  of  the  eastern  district  of 
Florida  had  jurisdiction  in  said  offence.  The  court  sus- 
tained this  second  plea,  and  decided  that  they  could  not 
take  cognizance  of  the  offence  for  the  trial  of  which  the 
coiu't  was  convened.  The  commanding  general  disap- 
proved this  decision,  inasmuch  as  the  unmilitary  conduct 
charged  ought  to  have  been  tried  by  the  court-martial, 
leaving  the  homicide  to  be  tried  by  the  civil  tribunal. 
Out  of  respect  to  the  civil  authority,  the  commanding 
general  deemed  it  proper  to  suspend  all  ^proceedings  in 
the  case,  until  the  decision  of  the  civil  court  should  be 
made  known.  Captain  H.  would,  notwithstanding,  ]>" 
sul)ject  to  trial  before  a  court-martial  for  any  breac^i 
the  military  law.* 

On  the  20th  October,  1841,  Captain  II.  was  tried  b. 
fore  the  court  of  Florida,  upon  the  indictment  for  man- 
slaughter which  had  been  found  against  him,  and  was, 
by  the  verdict  of  the  petit  jury  and  the  judgment  of  the 
court,  thereof  acquitted. 

The  court-martial  having  been  suspended  in  its  pro- 
ceedings, and  the  impediment  to  the  further  militaiy 
prosecution — the  officer  being  in  custody  of  the  civil 
authorities  at  the  time — having  Ijeen  removed,  the  court 
was  ordered  to  reassemble,  and  met  on  May  10th,  1842. 
The  accused  now  pleaded  in  1>ar,  his  arraignment,  trial 
and  acquittal,  on  the  before-mentioned  indictment  for 
manslaughter,  showing  an  authenticated   transcript  of 

*  G.  0.  Xo.  25.  Ilead-Quarters  of  the  army,  May  22d,  1840. 


102  [MILITARY    LAW    AXD    COUETS-MAETIAL. 

tlie  record  of  tlie  trial  and  acquittal,  iu  the  court  of 
Florida.  The  coui-t-martial  would  not  admit  the  valid- 
ity of  such  plea^  and  proceeded  to  trial.  The  accused 
was  found  guilty,  and  sentenced  to  be  suspended  from 
rank,  pay  and  emoluments  for  twelve  calendar  months. 
The  proceedings,  finding  and  sentence  were  duly  ap- 
proved and  carried  into  execution. 

In  his  comments,  the  attorney-general  says :  "  As- 
sault and  battery,  and  homicide,  are  violations  of  the 
municipal  laws  of  the  place  where  committed,  to  be 
tried  and  punished  by  the  proper  tribunal  of  the  state 
or  territory  whose  peace  is  broken  and  laws  offend- 
ed." But  the  same  acts  being  done  by  an  officer  or  sol- 
dier of  the  army  of  the  United  States,  over  and  above 
the  breach  of  the  local  law,  is  a  breach  also  of  the  law 
of  the  United  States,  a  violation  of  the  rules  and  arti- 
cles for  the  government  of  the  armies  of  the  United 
States.  In  such  a  case,  the  offender  is  punishable  both 
as  a  citizen,  sul)ject  to  the  municipal  law  of  the  place, 
and  also  as  a  soldier,  or  officer,  subject  to  the  military 
laAv  of  the  United  States. 

Such  double  accountahility  to  two  different  jurisdic- 
tions and  to  different  and  double  jniuishments,  for  the 
same  act,  making  two  different  offences,  is  settled  to  be 
lawful  by  the  decisions  of  the  Supreme  Court  of  the 
United  States,  in  the  case  of  Moore  vs.  the  state  of  Illi- 
nois. That  is  to  say,  the  rule  of  the  military  law  which 
decides  that  an  officer  or  soldier,  though  tried,  on  the  act 
of  killing  his  superior  officer,  for  murder  by  the  civil 
magistrate,  is  not  the  less  t]-ial)le  afterward  for  mutiny 
by  tlie  military  law,  is  in  complete  accordance  with  es- 
tal)lished  rules  of   common  civil    jurisprudence.     This 


THE    TKIAL    AND    ITS    INCIDENTS.  103 

case  disposes  of  tlie  question  of  autrefois  acquit,  or  of 
autrefois  convict  at  common  law,  or  of  clouljle  jeopardy 
of  life  and  limb,  for  tlie  same  offence,  in  the  amendments 
of  tlie  constitution;  for  tlie  courts  say  unequivocally, 
tliat  wlien  an  act  oifeiids  against  two  jurisdictions,  and 
lias  distinct  criminal  relations  Ly  each,  "  either  or  botli" 
of  tlie  jurisdictions  may  punisli  the  act,  it  being  the 
case  of  punishment  of  two  offences,  not  of  two  punish- 
ments for  one  offence.'"' 

Analogous  to  the  2)lea  of  autrefois  convict,  is  the  fact 
of  having  himw 2yrevioudy  punislied  for  the  same  offence. 
Such  a  plea  in  our  service  must  be  considered,  at  best, 
of  doubtful  validity,  as  no  superior  in  the  army  is  em- 
powered to  punish  an  inferior  without  due  process  of 
law ;  and  the  assumption  and  exercise  of  such  authority 
over  an  inferior  could  do  no  more  than  influence  the 
court  toward  the  infliction  of  a  lenient  sentence,  in  the 
event  of  conviction.  Were  a  commanding  officer  em- 
powered by  law  to  inflict  certain  kind  and  degree  of 
punishment  for  certain  specified  offences,  the  exercise  of 
this  power  would  constitute  a  valid  jilea,  unless  fresh 
circumstances,  previously  unknown,  rendered  the  punish- 
ment inflicted  not  at  all  commensurate  with  the  increas- 
ed gravity  of  the  offence. 

2d.  A  pardon  may  be  pleaded  in  bar  of  trial ;  if  full, 
it  at  once  destroys  the  end  and  purpose  of  the  charge, 
by  remitting  that  punishment  which  the  prosecution  is 
calculated  to  inflict.f 

After  the  termination  of  the  Mexican  war,  the  Presi- 
dent directed  it  to  be  announced  "  that  deserters  from 
the  army,  at  large,  may  peaceably  return  to  their  homes 

*  Gushing,  April  7th,  1854.  f  Blacksloue,  337. 


104  MILITAIIY   LAW    AND    COUETS-MAETIAL. 

witliout  being  subject  to  punisliment  or  trial  on  account 
of  sucli  desertion.* 

A  case  is  cited  by  Simmons,f  in  wliicli  tlie  court  were 
of  opinion  that  tlie  forgiveness  of  tlie  prisoner,  by  liis 
commanding  officer,  of  this  same  crime  of  desertion  now 
preferred  against  liim,  and  tlie  prisoner  having  been  or- 
dered to  duty  subsequent  to  sucli  forgiveness,  did 
amount  to  a  pardon ;  wbicli  o23inion  was  confirmed  by 
the  field-marshal. 

3d.  The  prisoner  may  plead  in  bar,  the  statute  of  lim- 
itation, prescribed  by  the  88th  article  of  war  in  these 
words :  "  No  person  shall  be  liable  to  be  tried  and  pun- 
ished by  a  general  court-martial  for  any  oftence  which 
shall  appear  to  have  been  committed  more  than  two 
years  before  the  issuing  of  the  order  for  such  trial,  un- 
less the  person,  by  reason  of  having  absented  himself, 
or  some  other  manifest  impediment,  shall  not  have  been 
amenable  to  justice  within  that  period."  When  this 
plea  is  preferred  by  the  accused,  it  is  decisive,  unless 
the  prosecution  can  show  that  the  prisoner  was  not  amen- 
able to  justice  within  the  time  limited,' by  reason  of 
absence  or  other  manifest  impediment. 

In  the  case  of  Captain  Howe,  a  plea  of  this  kind  was 
made,  which  was  overruled  by  the  court.  The  facts 
were  these :  a  general  court-martial  was  ordered  on  the 
10th  of  April,  1840,  within  seven  months  after  the  of- 
fence had  been  committed,  to  try  the  charges,  &c. ;  and 
the  accused  pleaded  in  bar  certain  proceedings  against 
him,  for  the  same  act,  pending  before  a  civil  court,  thus 
himself  showing  to  the  court-martial  the  impediment 
that  existed.     The  action  and  proceedings  of  the  coui't- 

*  G.  0.  No.  35,  War  Department.  July  Gth,  1848.  f  Page  217. 


THE   TRIAL    AISTD    ITS    INCIDENTS.  105 

martial  were  suspended  because  of  that  impediment, 
which  was  not  removed  until  the  20th  of  Octoljer,  1841. 
On  the  2d  of  March,  1842,  the  trial  of  Cajitain  Howe 
was  ordered  to  be  proceeded  with,  by  the  reassembling 
of  the  court-martial  on  tlie  10th  of  May,  then  next, 
which  was  done  accordingly. 

The  prosecution  was  therefore  ordered  in  four  months 
and  four  days  after  the  impediment  was  removed,  mak- 
ing less  than  eleven  months  of  delay  in  prosecuting  the 
offence ;  and  the  court  therefore  decided  tliat  the  prose- 
cution was  within  the  exception  and  saving  of  the  statute, 
Avhich  decision  was  affirmed  by  the  commanding  general. 

The  attorney-general  states  that  the  suspension  of  the 
proceedings,  because  of  the  pending  indictment  before 
the  court  of  Florida,  and  the  respect  so  paid  to  the  civil 
magistrate  and  civil  proceedings,  were  justified  by  the 
33d  article  of  war,  as  also  by  precedents,  sound  reason, 
and  a  just  principle,  that  the  military  authority  should 
respect  and  await  an  instituted  proceeding  of  the  civil 
authority,  in  cases  where  they  have  concurrent  jurisdic- 
tion over  persons  who  have  offended  against  both  the 
municipal  law  and  the  military  law. 

So  long  as  the  civil  magistrate  holds  the  party  in  ac- 
tual physical  custody,  he  holds  him  rightfully ;  and  the 
military  authorities  are  bound  to  aid  him  in  this  respect. 
But  if  the  party  escape  from  the  sheriff,  or  if  he  be  re- 
leased on  bail,  or  if  he  be  tried  and  acipiitted,  or  if  he 
be  tried  and  convicted,  in  each  of  these  cases,  so  soon  as 
he  leaves  the  manual  custody  of  the  civil  magistrate,  he 
reverts  to  the  authority  of  his  military  superior.  In  all 
the  predicaments  of  life,  he  continues  to  be  snh  rt.ciUo. 
The  sacramentum  militare  clings  to  him  indissolubly. 


106  MILITARY    LA\V    AND    COURTS-MARTIAL. 

until  he  is  discharged  by  death,  or  by  the  lawful  act  of 
the  Pi'esideiit. 

Where  the  accused  mcikes  his  'pha  hut  waives  it,  and 
insists  on  his  trial,  the  court-martial  cannot  enter  upon 
it.  In  reference  to  this  point,  the  attorney-general  ob- 
serves :  "  That  the  prompt  prosecution  of  offences  was 
considered  as  essential  to  the  general  discipline  and 
moral  purity  of  armies ;  that  the  design  of  the  rule  was 
to  discourage  that  ill-judged  lenity  which  is  so  well 
calculated  to  destroy  the  efficiency  of  an  army,  <fec. 
The  rule,  therefore,  being  bottomed  on  these  grounds  of 
public  policy,  I  don't  think  that  it  is  competent  to  an 
individual  to  waive  it ;  or  that  a  court-martial  can  pro- 
ceed, even  at  the  application  of  the  arrested  party,  to 
examine  into  offences  of  more  than  two  years'  standing 
previous  to  the  order  summoning  the  couii,  unless  the 
prosecutor  can  show  that  the  party  accused,  by  reason 
of  absence  or  other  manifest  impedinlent,  had  not  been 
amenable  to  justice  within  the  time  limited  by  the  arti- 
cle."* 

4th.  The  accused  may  also  plead  a  total  or  partial 
Avant  of  sjJcoiiicatioH  to  the  chai'ge  as  to  matter,  or  as  to 
time,  where  time  is  an  essential  ingredient  of  the  offence, 
or  necessary  to  fix  the  identity.  This  plea  can  be  made 
on  the  ground  that  the  s])eeifieation  was  entirel}'  want- 
ing, or  that,  being  couched  in  sucli  vague  terms  and  not 
pointing  to  any  specific  crime,  it  did  not  admit  of  a  ])art- 
icular  defence ;  and  that,  moreover,  it  could  not  ])ermit 
the  plea  of  this  previous  trial  in  bar  of  another  prosecu- 
tion for  the  same  identical  ofience.  It*  admitted,  the 
plea  would  not  bar  a  trial  upon  charges  Avhere  the  facts 

*  Wirt,  July  25th,  1S2Q 


I 


THE   TRIAL    AND    ITS    INCIDENTS.  10*7 

were  specifically  set  forth,  and  for  this  reason  sucli  ob- 
jections are  usually  reserved  until  tlie  defence,  or  are 
made  tlie  sul)ject  of  remark  subsequent  to  pleading, 
since  tlie  course  of  the  prosecution  would  elicit  tlie  fiicts 
that  were  intended  to  cover  tlie  charge,  and  the  finding 
of  the  court  would  save  the  accused  from  a  second  trial 
for  the  same  offence. 

Where  the  court  has  entered  on  the  investigation,  the 
total  wcDit  of  specification  may  be  urged  as  good  and 
snfficient  reason  for  declining  all  defence,  and  would 
render  the  proceedings  of  none  effect,  as  under  the  cir- 
cumstances no  sentence  could  be  enforced.  Simmons 
cites  a  case,  where  the  accused  pleaded  "  Not  guilty.  I 
do  not  know  what  crime  I  am  tried  for,"  to  the  charge 
of  "  disgraceful  conduct,  he  having  been  rej^eatedly  gnilty 
of  offences  by  which  he  is  deemed  unworthy  to  remain 
in  his  majesty's  service."  The  court,  however,  found  him 
guilty,  and  recommended  him  to  be  discharged,  <fec.  The 
decision  of  the  judge  advocate  general  was,  that  the 
charge  was  so  absolutely  defective  in  all  legal  respects, 
that  it  was  impossible  to  confirm  a  finding  of  guilt  there- 
on ;  and  that  he  considered  any  revision  of  the  sentence  - 
out  of  the  question,  as  no  sentence  of  punishment  could 
be  properly  adjudged  or  enforced  upon  a  charge  not  sup- 
portable by  la\v. 

5th.  The  j^risoner  may  make  a  plea  in  abaicmcnt, 
which  is  usually  a  misnomer,  or  fiilse  addition.  The 
court  is  competent  to  i)ermit  the  flaw  or  error  to  be  cor- 
rected, upon  the  representation  of  the  accused;  "for  it 
is  a  rule  upon  all  pleas  of  al)atement,  that  he  who  takes 
advantage  of  a  flaw  must,  at  the  same  time,  show  how 
it  may  be  amended."*     In  case  of  a  misnomer,  the  pris- 

*  4  Blackstone's  Com.,  334. 


108  MILITARY    LAW    AND    COURTS-MARTIAL. 

oner  is  hound  to  give  liis  real  name,  and  the  charges  as 
corrected,  or  new  charges  made  according  to  his  aver- 
ments, may  be  tried  by  the  court.  The  effect  of  this 
plea  is,  to  dehiy  the  proceedings. 

The  same  may  be  said  of  a  plea  made  because  no  co'py 
of  charges  was  famished  the  prisoner,  or  that  there  is  a 
material  variance  between  the  copy  furnished  him  and 
that  upon  which  he  is  arraigned.  In  either  case  the 
proceedings  will  be  delayed,  to  allow  proper  time  for 
the  prisoner  to  prepare  to  meet  and  defend  himself  fi"om 
the  accusations. 

Form.  In  making  these  pleas  there  is  no  special  form 
required  by  courts-martial.  The  prisoner  states  his  plea 
in  ^vriting,  or  his  verbal  statement  is  taken  down  by  the 
judge  advocate.  In  all  cases,  when  necessary,  the  pris- 
oner is  of  right  permitted  to  call  up  evidence  to  sub- 
stantiate his  objections,  and  is  also  at  liberty  to  addi'ess 
the  court.  The  prosecution  may  bring  in  rebutting  evi- 
dence, and  is  entitled  to  a  reply.  All  this  goes  upon 
the  record. 

Where  the  plea  is  not  admitted  by  the  court,  the  jms- 
oner  has  still  the  privilege  of  pleading  to  the  general 
issue,  guilty  or  not  guilty.  Should  he  adhere  to  the 
unadmitted  plea,  and  refuse  to  plead  guilty  or  not  guilty, 
the  court  will  proceed  as  if  he  had  stood  mute,  or  plead- 
ed not  guilty. 

Not  Guilty.  The  most  usual  plea  offered  is,  "  Xot 
guilty,"  upon  which  the  trial  proceeds.  The  pleas  are 
always  recorded. 

AVitiic<«scs.  The  judge  advocate  now  calls  in  his  first 
witness,  and,  if  necessary,  clears  the  com^t-room  of  all 
persons  who  may  have  been  summoned,  as  it  is  a  general 


THE   TRIAL    AND    ITS    INCIDENTS.  109 

rule  to  exclude  all  sucli  on  both  sides,  during  tlie  exam- 
ination of  any  witness. 

Previous  to  the  introduction  of  the  first  witness,  the 
judge  advocate  may  open  the  case  by  such  a  statement 
of  its  merits  and  view  of  the  evidence  as  he  may  deem 
expedient,  restricted,  however,  to  language  perfectly  re- 
spectful to  the  court,  not  foreign  to  the  charges,  and  not 
reproachful  to  the  accused.  This  method  of  opening  the 
trial  is  almost  unknown  in  the  practice  of  our  courts- 
martial,  and  should  only  be  resorted  to  when  the  in- 
tricacy of  the  case  demands  a  prefatory  statement  that 
will  cause  the  testimony  to  be  better  appreciated  and 
more  easily  applicable.  This  statement  must  aj^pear,  in 
full,  upon  the  record. 

When  the  judge  advocate  intends  to  request  the  as- 
sistance of  the  person  who  has  preferred  the  accusation, 
the  latter,  if  also  a  witness,  should  be  the  first  examined, 
and  his  examination  should  be  so  complete  as  to  pre- 
clude the  necessity  of  calling  him  to  testify  again  after 
he  has  heard  the  testimony  of  other  witnesses.  Cases 
may  occur  where,  after  having  heard  some  or  all  of  the 
evidence,  a  person  may  be  called  as  a  witness.  This  fact 
does  not  render  him  incomj^etent,  though  it  may  aifect 
his  credibility. 

Competency.  When  a  witness  is  produced,  any  ob- 
jection to  his  competency  ought  to  be  stated  before  he 
takes  the  oath. 

The  witness  is  sworn  by  the  judge  advocate,  and  his 
name,  rank,  regiment,  or  corps,  or  distinctive  condition, 
is  recorded  at  length,  so  that  he  may  be  readily  identi- 
fied by  tlie  description. 

The  examination  of  witnesses  is  invariably  in  the 


110  lOLITAEY    LAA\'^    AND    COURTS-MAETIAL. 

presence  of  eacli  member  of  the  court,  because  the  coun- 
tenance, looks,  and  gestures  of  a  witness  add  to,  or  de- 
tract from  the  weight  of  his  testimony.  The  witnesses 
are  sometimes  directed  to  give  a  narrative  of  what  they 
know  in  relation  to  the  matter  under  investigation,  as 
affording  in  many  cases  the  most  natural  method  of  de- 
tailing the  circumstances  and  facts  in  the  order  of  time, 
thus  presenting  a  clear  and  consistent  statement.  The 
usual  and  preferable  mode  of  conducting  the  examina- 
tion, however,  is  by  interrogation — by  question  and  an- 
swer— as  being  the  more  certain,  du'ect,  and  searching 
means  of  eliciting  evidence. 

All  evidence  whatever  should  be  recorded  on  the  pro- 
ceedings, in  the  order  in  which  it  is  received  by  the 
court,  and,  if  possible,  in  the  very  words  of  the  ^^-itness. 
Should  the  judge  advocate  use  his  own  language,  he 
constitutes  himself  the  judge  of  the  shade  of  meaning 
intended,  and  may  not  convey  the  proper  idea  to  the 
minds  of  the  members,  or  to  the  reviewing  authority. 
It  is  best,  therefore,  to  record  the  very  words  and  pecu- 
liarity of  expression,  for  the  benefit  of  those  who  are  to 
decide  on  the  evidence.  If  there  be  any  doubt  as  to 
the  idea  intended,  the  necessary  explanation  must  be 
elicited  from  the  witness  himself. 

A  witness  may  refresh  his  memory  l)y  referring  to  a 
onemorandinn  of  facts  that  he  may  have  made,  l)ut  this 
does  not  permit  his  reading  a  written  statement  of  the 
testimony  he  is  to  give.  The  opposite  party,  when 
cross-examining,  must  be  allowed  to  ins23ect  the  memo- 
randum used  by  the  witness. 

Where  the  loitness  is  too  ill  to  attend  the  court,  the 
latter  may  adjourn  to  the  room  of  the  former  to  receive 


TBE    TEIAL    AND    ITS    ESTCIDENTS.  Ill 

his  evidence,  l)iit  tlie  loliole  court  must  attend  for  that 
purpose.  This,  of  course,  would  only  be  done  where  the 
witness  was  at  a  convenient  distance,  as  at  the  same  post 
where  the  court  is  convened. 

Deposition.  On  the  trial  of  cases  not  capital,  before 
courts-martial,  the  deposition  of  witnesses  not  in  the  line 
or  staff  of  the  army,  may  be  taken  before  some  justice 
of  the  peace,  and  used  in  evidence ;  provided  the  prose- 
cutor and  person  accused  are  present  at  the  taking  of 
the  same,  or  are  duly  notified  thereof* 

The  74th  article  of  war  by  providing,  under  certain 
restrictions  and  in  cases  not  capital,  that  depositions 
may  be  taken,  negatives  their  allowance  in  other  cases ; 
and  the  existence  of  the  provision  sufficiently  proves 
that  without  it,  such  testimony  would  not  be  comj)e- 
tent,  even  in  those  minor  cases.f 

Compulsory  AitcBttdaiicc.  Officers  and  soldiers,  and 
other  persons  connected  with  the  army  may  be  com- 
pelled to  appear  before  a  court-martial ;  and  the  above-w 
quoted  article  supplies  to  some  extent  the  deficiency  of 
law  in  this  regard  with  respect  to  non-military  persons, 
by  providing  that  their  testimony  may  be  taken  by  de- 
position. Why  compulsory  process  is  not  permitted  in 
the  case  of  civilians,  arises  very  naturally  from  the  ex- 
cessive jealousy  of  the  military  state  that  has  always 
existed  in  free  governments,  and  the  repugnance  of  a 
free  people  to  be  brought  under  military  control  even 
in  the  cause  of  justice  and  right.  It  is  indirectly  but 
another  proof  of  the  entire  subordination  of  the  mili- 
tary to  the  civil  power. 

The  custom  has  oljtained  of  reading  tlie  charges  and 

*  74th  article  of  war.         f  Attorney-general's  opinions,  June  30th,  1830. 


112  MILITARY   LAW    AND    COURTS-MAETIAL. 

specifications,  or  portions  of  them,  to  a  ^^dtness  as  soon 
as  he  is  sworn,  and  prior  to  his  examination.  This  is 
most  objectionable  as  a  rule,  and  is  in  direct  variance 
with  the  practice  of  civil  tribunals,  which,  by  analogy, 
are  om*  safest  o-iiides  in  the  absence  of  law  or  re2:ulation. 
Whenever  the  reading  of  the  sj^ecification  may  operate 
as  a  leading  question  to  the  mtness,  either  as  to  time, 
place,  or  particular  words  and  expressions,  it  should  of 
necessity  be  omitted ;  and  as  it  is  difficult  to  draw  the 
distinction  between  cases  in  which  this  method  should 
be  ol)served  or  omitted,  the  rule  should  l^e  fixed  that  all 
examinations  of  witnesses  be  by  interrogation,  and  that 
the  specifications  be  read  to  him  and  he  put  on  a  narra- 
tive, only  in  clear  and  unol^jectionable  cases,  and  as  rare 
exceptions  to  the  general  rule. 

All  questions  to  a  loitness  are  reduced  to  Aviitlng  by 
the  individual  originating  them,  whether  he  be  the  judge 
advocate,  the  accused,  or  a  member  of  the  coiu't.  The 
question  is  read  aloud  and  entered  uj)on  the  record  by 
the  judge  advocate,  and  if  no  oljjection  be  made  to  it  by 
the  opposite  party  or  by  the  court,  it  is  addressed  to 
the  witness.  Either  party  and  any  member  of  the  court 
may  object  to  the  putting  of  any  question  that  is  j^ro- 
posed,  and  whenever  objection  is  made,  the  court  is 
cleared  and  a  majority  of  votes  determines  whether  or 
not  it  shall  be  put.  If  the  question  is  rejected  it  shall 
not  be  expunged  from  the  record,  except  by  permission 
of  the  court  and  \A\\\  the  consent  of  both  parties,  but 
shall  a2)pear  in  the  proceedings  with  the  decision  of  the 
court  thereon. 

In  all  cases  the  court  must  have  the  statements  for 
and  against  the  propounding  of  a  question,  recorded  for 


THE    TRIAL    AND    ITS    INCIDENTS.  113 

the  iuformation  of  tlie  reviewing  authority;  but  the 
court  may  decline  receiving  any  protest  against  any  of 
its  decisions.  When  the  judge  advocate  considers  a 
question  as  too  objectionable  to  be  read  in  the  hearing 
of  the  mtness,  his  duty  is,  to  ask  the  court  to  be  cleared 
before  reading  it,  and  have  their  decision  upon  it,  as 
witnesses  may  be  instructed  by  improper  questions,  even 
when  not  admitted. 

A  question  put  hy  the  court  cannot  be  objected  to  by 
either  party,  as  the  court  is  the  sole  judge  of  what  evi- 
dence is  to  be  admitted  or  rejected ;  and  neither  party 
can  insist  on  a  question  being  put,  that  has  been  reject- 
ed— the  decision  of  the  court  being  final.  A  question 
put  by  an  individual  member,  if  accepted,  is  recorded 
as  hy  the  court ;  if  rejected,  as  hy  a  memher. 

The  witness  being  sworn,  the  party  who  produces 
him,  proceeds  with  the  examination  which  is  called  the 
examination  in  chief  ^  the  opposite  party  then  examines 
him  in  what  is  styled  the  cross  examination ;  the  party 
that  introduced  the  witness  can  question  him  upon  such 
points  as  the  opposite  party  may  have  touched  upon, — 
this  is  called  the  re-examination.  It  is  customary  and 
best  for  the  com-t  to  defer  questioning  the  witness  until 
after  his  entire  examination  by  both  parties  has  been 
concluded,  although  the  court  is  competent  to  question 
at  au}^  time.  It  is  essential  to  the  regularity  of  the  pro- 
ceeding's of  a  court-martial,  that  this  mode  of  examining 
witnesses  be  strictly  adhered  to,  as  indiscriminate  ques- 
tioning is  apt  to  confuse  the  witness  and  perplex  the  case. 

Pending  his  examination,  the  witness  has  a  right  to 
explain  tlie  evidence  he  has  given,  but  entries  already 
made  in  the  proceedings  are  not,  as  a  consequence,  to 


114  MILITARY    LAW    AND    COUETS-MARTIAL. 

1)6  erased  or  expunged;  and  tlie  coui-t  may  call  upon 
liim  to  explain  any  doubt  that  may  arise  after  his  exam- 
ination has  closed.  When  deemed  necessary  by  the 
court  or  desired  by  a  witness,  the  record  of  his  evidence 
when  completed  is  read  over  to  Mm  immediately  before 
he  leaves  the  court,  and  he  is  desired  to  coiTect  it  if 
erroneous,  and  any  remark  or  explanation  is  entered  on 
the  proceedings ;  but  the  testimony  should  not  be  read 
to  him,  or  he  be  permitted  to  refer  to  it,  when  under  or 
previous  to  cross-examination,  as  such  a  course  might 
defeat  the  very  ends  and  purposes  of  a  cross-examina- 
tion. No  erasure  or  obliteration  is  permitted  under  any 
circumstances,  as  it  is  absolutely  necessary  that  the 
reviewing  authority  should  have  the  most  amj^le  means 
of  judging,  both  of  discrepancies  in  the  testimony  of 
witnesses  and  of  incidents  that  have  been  made  the  sub- 
ject of  comment  by  either  party.  Immaterial  questions, 
or  such  as  have  been  put  inadvertently  and  answered, 
might  be  expunged^  the  parties  not  objecting,  but  it  is 
not  advisable  to  follow  such  precedents.  It  is  best  to 
make  a  minute  of  the  sense  of  the  court  on  the  matter 
inadvertently  admitted,  for  the  benefit  of  the  reviewing 
authority.  After  having  left  the  court,  and  even  on  a  sub- 
sequent day,  a  witness  may  request  to  be  readmitted  in  or- 
der to  coiTect  or  amend  the  evidence  he  may  have  given. 

Sliould  the  prisoner,  having  closed  his  cross-examina- 
tion, think  proper  subsequently  to  recall  the  prosecu- 
tor's witness  in  his  defence,  the  witness  will  then  be 
subject  to  cross-examination  by  the  prosecution. 

Although  either  party  may  have  concluded  his  case, 
or  the  regular  examination  of  a  witness,  yet,  should  a 
material  question  have  been  omitted,  it  is  usually  sub- 


THE    TRIAL    AND    ITS    INCIDENTS.  115 

mitted  by  the  party  for  the  consideration  of  the  court, 
who  generally  permit  it  to  l)e  put.* 

During  the  prosecution,  all  the  testimony  in  substan- 
tiation of  the  charges  and  specifications  must  be  pro- 
duced, and  no  further  evidence  shall  be  permitted  in 
'proof  of  the  facts  spec-ified,  after  the  prosecution  is 
closed.  The  protection  to  the  prisoner  of  his  particular 
line  of  defence,  demands  a  rigid  adherence  to  this  rule. 

AVhen  the  prosecution  is  closed,  the  judge  advocate 
must  enter  upon  the  record  a  minute  to  that  effect. 

Defence.  The  accused  then  enters  on  his  defence, 
but  before  proceeding  he  may  deem  it  essential  to  have 
a  day  or  two  for  prei)aration,  which  is  always  granted 
by  the  court  at  his  request.  He  then  begins  his  defence 
by  first  examining  his  witnesses,  reserving  his  address 
to  the  conclusion  of  such  examination ;  or  he  may  pre- 
mise the  examination  of  witnesses  mth  a  statement  of 
those  defences  which  he  means  to  support  by  evidence, 
defeiTing  his  remarks  on  the  address  and  testimony 
offered  on  the  part  of  the  prosecution,  until  after  the 
examination  of  his  own  witnesses. 

The  above  is  strictly  in  accordance  with  the  customs 
of  courts-mai-tial ;  that  is,  to  close  with  tlie  prosecution 
upon  the  entire  matter  in  issue,  before  calling  in  wit- 
nesses for  the  defence.  Where,  liowever,  the  charges 
and  specifications  to  be  investigated  are  exceedingly 
voluminous,  and  the  hearing  of  the  testimony  requires 
a  considerable  length  of  time,  a  departure  fi-om  the 
usual  mode  of  proceeding  may  be  justified  for  ol)vious 
reasons,  and  the  court  may  order  the  production  of  the 
evidence  on  each  separate  charge,  as  far  as  practicable, 

*  SimmoDS,  p.  225. 


116  MILITARY    LAT^T    AND    COURTS-MAKTIAL. 

before  proceeding  witli  tlie  next.  This  would  simplify 
the  deliberations  of  the  court,  and  the  labors  of  the  re- 
viewing authority,  as  the  evidence  on  the  part  of  the 
prosecution  and  defence  would  thus  be  brought  in  jux- 
taposition.* 

Address.  The  prisoner  having  finally  closed  his  ex- 
amination of  witnesses,  may  request  reasonable  time  for 
the  preparation  of  his  written  defence.  He  offers  in 
this  address  such  statement  or  argument  as  he  may 
deem  conducive  to  weaken  the  force  of  the  prosecution, 
by  placing  his  own  conduct  in  the  most  favorable  light. 
He  has  a  right  to  construe  the  evidence  adduced  in  any 
way,  to  draw  any  deductions  from  it,  and  to  explain  all 
that  may  seem  to  bear  against  him  by  argument  from 
facts  established,  but  he  has  no  right  to  testify  for  him- 
self by  statements  not  supported  by  the  testimony  be- 
fore the  court,  or  to  introduce  documents  or  other  evi- 
dence which  he  has  neglected  to  present  at  the  proper 
time.  The  utmost  liberty  consistent  with  the  interest 
of  parties  not  before  the  court,  and  with  the  respect  due 
to  the  court  itself,  should  at  all  times  be  allowed  the 
prisoner.  As  he  has  an  undoubted  right  to  impeach, 
by  evidence,  the  character  of  the  witnesses  brought 
against  him,  so  is  he  justified  in  contrasting  and  remark- 
ing on  their  testimony,  and  on  the  motives  by  which 
they  or  the  prosecutor  may  appear  to  have  been  influ- 
enced. All  coarse  and  insulting  language  is,  however, 
to  be  avoided ;  nor  ought  invective  ever  to  be  indulged 
in;  the  most  pointed  defence  may  be  couched  in  the 
most  refined  language. 

It  is  the  practice  in  our  service  to  allow  the  prisoner 

*  PUlow's  trial,  pp.  1 2,  384. 


J 


THE    TRIAL    AND    ITS    INCIDENTS.  Il7 

the  privilege  of  Laving  liis  address  read  to  the  court  hy 
Msprofessional  counsel^  or  by  a  military  friend.  There 
is  no  substantial  reason  for  any  prohibition  in  tliis  re- 
gard, and  the  rigid  practice  in  Great  Britain  has,  of  late 
years,  been  changed,  and  the  cases  have  been  frequent 
where  professional  counsel  have  been  jiermitted  to  read 
the  ^vritten  defence.  In  all  cases,  at  the  request  of  the 
prisoner,  the  judge  advocate  must  read  the  defence,  it 
being  his  duty  to  read  all  papers  for  the  court,  that 
may  be  handed  him  by  the  prisoner. 

Pleas  in  Bar  of  Judgment.  A  prisoner  in  his  defence 
may  not  only  negative  the  allegations  contained  in  the 
charges  and  specifications,  but  may  bring  forward  any 
matters  of  excuse  or  justification,  embodying  the  sub- 
stance, and  in  place  of  pleas  in  bar  of  trial.  There  are 
also  certain  grounds  of  exemption  from  the  censure  of 
the  law,  that  may  be  brought  forth  in  evidence,  embody- 
ing the  matter  and  in  place  oi pleas  in  har  of  judgment^ 
such  pleas  being  seldom  or  never  made. 

Sir  William  Blackstone  observes :  "  All  the  several 
pleas  and  excuses  which  protect  the  committer  of  a  for- 
T)idden  act  from  the  punishment  which  is  otherwise  an- 
nexed thereto,  may  be  reduced  to  this  single  considera- 
tion, the  Avant  or  defect  of  will.  To  constitute  a  crime 
against  human  la^vs,  there  must  l)e,  first,  a  vicious  "will, 
and  secondly,  an  unhnvful  act  consequent  upon  such 
A'icious  vr^y  He  then  particularizes  three  cases,  in 
which  the  lo'dl  does  not  join  with  the  act : 

1.  Where  there  is  a  defect  of  understanding. 

2.  Where  there  is  understanding  and  loill  sufficient 
residing  in  the  part}',  but  not  called  forth  and  exerted 
at  the  time  of  the  action  done. 


118  MILITARY    LAW    AND    COURTS-MARTIAL. 

3.  Where  the  action  is  constrained  by  some  outward 
force  and  violence. 

Of  the  excuses  which  may  be  considered  by  a  court- 
martial,  lunacy  and  intoxication  belong  to  the  fii-st  class ; 
misfortune  and  ignorance  may  be  referred  to  the  second  ; 
and  compulsion  or  necessity  to  the  third. 

Ab^ioiutc  insanity,  like  total  idiocy,  excuses  from  the 
guilt,  and  of  course  from  the  punishment  of  a  crime 
committed  during  this  incapacity,  but  if  the  lunatic  has 
lucid  intervals  and  reason  sufficient  to  discern  rig;ht 
from  wrong,  he  must  be  held  to  ansAver  for  what  he  does 
in  those  intervals.  So  far  the  law  is  clear  and  explicit, 
but  difficidties  arise  in  the  case  of  alleged  crimes  com- 
mitted l)y  persons  afflicted  with  insane  delusions  in 
respect  to  one  or  more  particular  subjects  or  persons, 
but  not  insane  in  other  resj^ects. 

Intoxication  is  looked  upon  by  the  law  as  an  aggra- 
vation of  the  offence,  rather  than  as  an  excuse  for  any 
criminal  act;  and  the  practice  of  courts-martial  is 
almost  universally  based  on  the  maxim,  tliat  he  who  is 
guilty  of  any  offence  whatever,  through  his  voluntary 
drunkenness,  shall  be  punished  for  it  as  much  as  if  he 
had  been  sol)er."^'  Experience  teaches  us  that  drunken- 
ness is  the  prolific  source  of  most  of  the  serious  offences 
committed  in  the  military  state,  and  the  only  way  of 
eradicating  the  evil  is  by  not  'overlooking  the  cause  in 
punishing  the  crime.  Besides,  the  ease  with  which 
drunkenness  can  be  counterfeited  would  render  it  a 
ready  and  safe  cloak  for  palliating  the  enormity  of  a 
crime,  were  it  the  custom  thus  to  privilege  one  offence 
})y  the  commission  of  another. 

*  1  Hawk.,  3. 


THE   TRIAL    AND    ITS    ITsTCTBENTS.  119 

misfortune,  or  Cliaiicc.  It  is  lield  tliat  an  accidental 
miscliief  caused  by  tlie  performance  of  a  lawful  act,  ex- 
cuses the  party  from  all  guilt ;  but  if  the  mischief  be 
the  result  of  an  unlawful  act — not  merely  technically 
illegal,  but  morally  vicious — his  want  of  foresight  is  no 
excuse.* 

Ignorance,  or  mistake,  is  a  defect  of  will — as  where 
a  man  intending  to  do  a  lawful  act  does  an  unlawful 
one.  Suppose  a  soldier,  firing  at  a  target  by  order  of 
his  superior,  kills  a  bystander,  such  an  act  is  not  crimi- 
nal. A  mistake,  however,  as  to  a  point  of  law,  is  no  sort 
of  defence  in  criminal  charges ;  neither  is  ignorance  of 
the  laws  and  rules  for  the  government  and  regulation  of 
the  army,  or  any  order  officially  published,  with  which 
it  may  be  the  duty  of  officers  of  the  army  to  be  familiar, 
admitted  as  an  excuse  for  their  non-observance. 

Conipuiiiiou,  or  inevitable  necessity^  is  a  plea  that  may 
frequently  come  in  question  before  courts-martial,  and 
therefore  requires  particular  notice.  These  are  a  con- 
straint upon  the  will,  by  which  a  man  is  urged  to  do 
that  which  his  judgment  disapproves,  and  which,  it  is 
presumed,  his  will,  if  left  to  itself,  would  reject.  As 
punishments,  therefore,  are  only  inflicted  for  the  abuse 
of  that  free  will  which  Grod  has  given  to  man,  it  is 
highly  just  and  equitable  that  a  man  should  be  excused 
for  those  acts  which  are  done  through  unavoidable  force 
and  compulsion.f  This  exculpation,  admitted  by  the 
common  law  to  arise  from  compulsion,  courts-martial 
would  be  disposed  to  extend  to  acts  performed  in  obe- 
dience to  the  order  of  a  military  superior.  If  deatli 
ensue  from  the  fire  of  a  soldier  acting  under  the  illegal 

*  4  Black.,  2G.  t  -^  I^lack.,  26. 


120  MILITAEY    LAAV    AND    COURTS-MARTIAL. 

orders  of  his  superior,  sucli  order  would  not  justify  tlie 
act  in  the  eye  of  the  common  la^v;  and  the  soldier 
equally  with  his  superior  would  be  guilty  of  murder ; 
yet  a  court-martial  would  probably  consider  such  neces- 
sity as  a  justification  of  the  act  of  the  soldier.  Time, 
the  law  demands  sti'ict  obedience  to  the  "  lawful  com- 
mands "*  of  a  superior.  Unlawful  or  illegal  orders  are 
therefore  not  obligatory,  and  it  is  la\\'ful  in  a  military 
sense  to  disobey  an  unlaMi\d  command  of  a  superior. 
As  the  recipient  of  the  order  must  of  necessity  be  the 
judge  of  its  legality  to  the  extent  of  his  obedience,  he 
disobeys  the  order  at  his  peril.  As  long  as  the  com- 
mands are  not  decidedly  and  flagrantly  in  opposition  to, 
or  in  violation  of,  the  laws  of  the  land  or  the  established 
customs  of  war,  and  therefore  apparently  unlawful  to  a 
common  uudei'standing  without  particular  reflection  or 
consideration,  so  long  must  the  commands  of  a  superior 
meet  with  prompt  and  unhesitating  obedience.  Hesita- 
tion in  a  soldier  is,  under  certain  circumstances,  a 
crime ;  and  liesitation  is  inseparable  from  reflection  and 
consideration;  reflection  and  consideration,  therefore, 
must,  in  some  sense,  be  considered  as  a  military  ofl^'ence. 

In  cases  where  tlie  legality  is  doubtful,  the  safest  ride 
is  obedience,  "  for  in  all  such  cases  an  officer  should  act 
upon  the  reasonable  presumption  that  his  superior  was 
autliorized  to  issue  an  order,  Avhich  he  might  be  author- 
ized to  issue.  If  he  acts  otherwise,  he  does  so  at  his 
peril,  and  subjects  himself  to  the  risk  of  being  punish- 
ed for  disobedience  of  orders.'^f 

Another  species  of  compulsion  or  necessity,  sometimes 
pleaded  in  cases   of  mutiny  or  rebellion,   arises  from 

*  9th  article  of  war.       f  G.  0..  No.  34,  war  department.  September  4th.  1S52. 


THE   TKIAL    AND    ITS    INCIDENTS.  121 

threats  or  menaee-s'  \\\\\(A\  induce  a  fear  of  deatli  or  other 
bodily  harm,  and  whicli  take  away,  for  that  reason,  the 
guilt  of  man}'  crimes  and  misdemeanors  f  but  the  pres- 
ent fear  of  death  is  the  only  force  that  does  excuse,  and 
this  force  and  fear  must  continue  all  the  time  the  party 
remains  with  the  mutineers  or  rebels,  and  must  be  sho^vTi 
to  have  been  actual  force  or  fear,  and  not  the  resultant  of 
an  excited  imagination.  The  follo^ving  case  is  applica- 
ble to  the  subject  and  illustrates  it.  In  1813,  a  sergeant 
of  His  Majesty's  60th  regiment  of  foot,  who  had  orig- 
inally deserted  from  the  French,  entered  that  regiment 
by  a  voluntary  enlistment.  On  the  advance  of  the 
army  into  Spain,  under  the  Duke  of  Wellington,  he  was 
taken  prisoner  l)y  the  French.  To  save  his  life,  forfeit- 
ed by  the  act  of  desertion,  he  entered  into  the  coqys  des 
etrangers^  set  apart  in  the  French  service  for  such  men, 
as  an  inducement  to  them  to  return  to  it.  At  tlie  bat- 
tle of  Victoria,  he  was  again  taken  prisoner  by  the 
English,  and  a  general  court-martial  was  ordered  to  try 
him  for  desertion.  The  first  sentence  acquitted  him  of 
the  act  of  tlestrtion^  there  being  the  ^^^werful  induce- 
ment to  the  act,  with  the  view  of  savins;  his  life  :  but 
the  sentence  was  revised,  and  it  is  stated,  that  on  revis- 
ion, he  was  sentenced  to  suffer  deatli.,  and  was  after- 
ward shot  in  the  presence  of  that  division  of  the  army 
to  which  he  behmged.  It  is  also  understood  that  it 
was  intimated  to  the  court,  tliat  the  excuse  pleaded  by 
the  prisoner  was  inadmissible,  as  he  should  have  prefer- 
red death  rather  than  to  have  entered  the  service  of  the 
enemy.f 

The  facts,  in  the  above  cited  case,  seem  not  to  have 

*  -1  Black.  29.  f  Rough,  p.  364. 


122  JIILITAEY    LAW    AND    COUETS-MARTIAL. 

been  clearly  stated.  For,  if  lie  was  taken  prisoner  by 
the  French  and  entered  their  service  to  save  his  life,  the 
act,  though  most  reprehensible,  was  not  desertion^  the 
circumstances  amounted  to  compulsion,  pro  timore  mor- 
tis^ and  he  was  therefore  excusable.  If,  however,  he 
actually  deserted  from  the  English,  and  afterward  fall- 
ing into  the  hands  of  the  French,  he  thus  endeavored 
to  save  his  life,  the  verdict  of  the  court-martial  was 
just,  and  he  deserved  to  die  for  desertion. 

Reply.  The  prisoner  having  closed  his  defence  by 
delivering  his  written  address,  the  judge  advocate  has 
the  right  to  reply.  By  a  reply  is  meant,  a  right  of  re- 
marking by  argument  upon  the  evidence  in  general, 
and  upon  the  address  of  the  accused,  and  of  controvert- 
ing by  testimony  any  neio  matter  that  may  have  been 
introduced  by  the  accused  in  his  examination  in  chief 
of  witnesses.  He  can,  however,  only  adduce  fresh 
evidence  when  new  matter  has  been  introduced  in 
the  defence;  as,  for  example,  a  prisoner  is  charged 
with  mutiny,  and  the  charge  is  clearly  j^roved,  but 
in  his  defence  the  prisoner  brings  evidence  to  show 
that  he  committed  tlie  act  under  compulsion,  against 
his  own  will,  and  in  fear  of  his  life.  This  being  new 
matter^  to  ^Nhich  the  evidence  of  the  prosecution  does 
not  at  all  apply,  and  which  could  not  in  reason  have 
been  anticipated,  the  judge  advocate  is  permitted  to 
refute  it,  if  possible,  by  the  examination  of  witnesses 
or  the  production  of  documents.  So  also,  should  the 
accused  have  entered  on  an  examination  reflecting  on 
the  credibility  of  the  witnesses  for  the  prosecution,  the 
judge  advocate  is  allowed  not  only  to  address  the  court 
in  reply,  but  also  to  examine  witnesses  to  the  new  mat- 


THE    TRIAL    AND    ITS    INCIDENTS.  123 

ter  for  the  purpose  of  re-establisliing  therjiamctei'ofhiii 
witnesses,  whose  testimony  has  been  impeached. 

The  coui"t,  being  the  judge  of  what  is  new  matter, 
must  be  extremely  watchful  to  prevent  the  judge  advo- 
cate from  examining  any  point  not  introduced  as  new 
matter  by  the  jjrisoner.  Neither  should  he  be  permit- 
ted to  examine  on  any  points  which  might  have  been 
foreseen  prior  to  the  defence  of  the  accused.  For  Lord 
Ellenborough  has  well  remarked :  "  If  any  one  fact  he 
adduced  hy  the  defendant^  to  which  an  answer  can  be 
given,  the  plaintiff  must  have  an  opportunity  given  for 
so  doing;  but  this  must  be  understood  of  a  specific 
fact,  he  cannot  go  into  general  evidence  in  reply  to  the 
defendant's  case ;  there  is  no  instance  in  which  the 
plaintiff"  is  entitled  to  go  into  half  his  case,  and  reserve 
the  remainder." 

When  the  judge  advocate  has  been  allowed  to  adduce 
evidence  in  his  reply,  to  controvert  new  'matter  introduced 
by  the  defence,  the  accused  is  permitted  to  cross-examine 
such  witnesses  to  the  extent  of  the  examination  in  chief. 
In  this  case,  he  is  also  entitled  to  a  rejoinder  in  which 
he  may  attempt  to  invalidate  its  effect ;  but  he  is  not 
permitted  to  call  Avitnesses  except  for  the  purpose  of  re- 
establishing the  credit  of  such  witnesses  as  may  have 
been  impugned  by  the  witnesses  for  the  prosecution  in 
the  re2)ly. 

A  second  reply,  or  sur-rejoinder  may  be  allowed 
to  the  prosecution,  to  an  extent  limited  by  the  argu- 
ments of  the  accused  in  his  rejoinder.  But  where  these 
various  addresses  are  necessary  and  called  for,  recent 
practice  and  usage  have  been  more  in  accordance  with 
the  prevailing  impression,  as  it  is  laid  down  by  Sir 


124  MILITARY   LAW    AND    COURTS-MARTIAL. 

Charles  J.  Napier,  that  "  the  prisoner  has  the  right  to 
speak  last."  This  is  more  conformable  with  the  gen- 
erous principles  of  the  military  law,  derived  not  from 
the  wi'itten  rules  and  articles,  but  from  the  custom  of 
war. 

Recall  "Witnesses.  After  the  prosecution  and  defence 
are  closed,  and  the  court  has  been  cleared  for  delibera- 
tion, it  is  still  competent  for  a  court-martial  to  recall  a 
witness  for  such  examination  as  may  be  deemed  essen- 
tial, the  parties,  however,  being  present.  And  indeed, 
the  court  is  at  liberty,  at  any  stage  of  the  proceedings 
hefore  the  finding,  to  recall  evidence  for  such  j^urpose, 
but  this  does  not  authorize  the  coui"t  to  originate  evi- 
dence by  calling  "witnesses  not  produced  by  either 
party.  The  extreme  limit,  in  this  respect,  to  which  a 
court  is  justified  in  going  by  the  custom  of  service,  is 
the  calling  as  a  mtness,  any  iudi-^ddual  alluded  to  in 
the  evidence  before  the  court,  for  the  purpose  of  eluci- 
dating any  doubtful  point. 


CHAPTEE    XI. 

THE  FINDING. 

The  judge  advocate  and  prisoner  having  laid  their 
case  before  the  com-t,  the  latter  is  cleared  for  delibera- 
tion, in  order  to  decide  upon  the  question  of  guilt. 

A  fair  copy  of  the  record  of  the  proceedings  is  read 
over  by  the  judge  advocate,  which  answers  the  purpose 
of  l)ringing  to  the  view  of  the  members,  the  entire  evi- 
dence in  a  connected  chain.  As  the  fair  copy  is  daily 
compared  with  the  original  manuscript  in  the  presence 
of  the  coui-t,  during  the  reading  of  the  previous  day's 
proceedings  by  the  judge  advocate,  the  members  are 
positive  that  it  is  a  faithful  record  of  the  evidence.  In 
intricate  cases  and  where  the  testimony  is  voluminous, 
the  judge  advocate  shall  be  prepared  with  an  index  for 
easy  reference  to  the  record. 

In  deliberating  upon  the  evidence,  and  its  bearing 
upon  the  several  points  of  accusation  involved  in  the 
specifications,  it  is  the  practice  of  courts-martial  for 
members  to  indulge  in  a  free  and  open  conversation^ 
with  a  view  to  a  more  full  and  correct  understanding 
of  the  case  in  its  various  ramifications,  and,  if  possible, 
to  harmonize  conflicting  opinions,  in  regard  to  the  rela- 
tions existing  between  the  facts  as  alleged  in  the  specifi- 
cations and  the  crime  as  set  forth  in  the  charge.  In  this 
discussion,  the  utmost  care  should  l)e  had  by  each  mem- 


126 


MILITARY    LAW    AND    COURTS-JIAETIAL. 


ber  not  to  intimate  his  own  final  opinion  and  vote,  so 
as  to  avoid  any  influence  tliat  sueli  intimation  might 
have  on  the  vote  or  opinion  of  another,  otherwise  it 
would  have  the  effect  of  counteracting  the  intention  of 
the  law,  which  requires  the  junior  to  vote  first. 

]VIr.  Tytler  veiy  properly  remarks,  that  the  "  members 
should  reason  and  deliberate  separately  on  each  charge 
(and  specification) ;  candidly  discussing  the  import  of 
the  evidence,  and  allowing  its  full  weight  to  every  argu- 
ment or  presumption  in  favor  of  the  prisoner."  The 
paramount  object  of  every  member  should  be  perfect 
impartiality.  He  should  divest  himself  of  every  desire 
to  see  the  innocent  suffer  or  the  guilty  escape;  should 
not  permit  false  pity  or  undue  severity  to  influence  his 
judgment;  and  should  keep  constantly  in  mind  the  re- 
quirements of  his  oath,  to  "well  and  truly  try  and  deter- 
mine according  to  evidence  the  matter"  now  before  him, 
and  to  "  duly  administer  justice  without  partiality,  favor 
or  affection." 

At  this  stage  of  the  proceedings,  the  dufy  of  the  judge 
advocate  being  sim2:)ly  to  act  as  registrar  of  the  court, 
and  to  advise  on  legal  points  when  his  opinions  may  l)e 
claimed,  he  necessarily  abstains  from  rnakino;  any  re- 
mark  by  which  his  judgment  as  to  the  guilt  or  inno- 
cence of  the  prisoner  may  be  ascertained. 

The  court  must  bear  in  mind  that  they  are  bound  to 
exhaust  all  the  charges  and  specifications  that  have 
come  before  them,  by  expressly  acquittinc/  or  convicting 
the  prisoner,  severally,  of  each  specification  and  of  each 
charge. 

Voting.  Having  ascertained  that  the  members  are 
ready  for  the  vote,  after  full  examination  of  the  evidence 


THE    FINDING.  12*7 

and  iiiature  deliberation  thereon,  the  president  signifies 
the  fact  to  the  judge  advocate.  The  latter  then  reads, 
in  consecutive  order,  the  specifications  to  the  1st  charge, 
and  then  the  first  charge,  and  so  on  with  the  other 
charges  and  specifications ;  taking  the  votes  in  succes- 
sion, by  addressing  each  member,  beginning  "  with  the 
youngest  in  commission."* 

The  judge  advocate  notes  the  vote  of  each  meml^er  as 
he  gives  it,  but  this  memorandum  must  he  destroyed 
when  the  aggregate  opinion  or  decision  of  the  court  has 
been  determined  and  recorded.  Whether  this  memo- 
randimi  should  be  preserved  or  destroyed,  has  given 
rise  to  some  discussion.  The  oath  taken  by  the  mem- 
bers, as  well  as  that  by  the  judge  advocate,  contains  the 
same  words,  as  follows :  that  you  Avill  not  "  disclose  or 
discover  the  vote  or  opinion  of  any  particular  member 
of  the  court-martial,  unless  required  to  give  evidence 
thereof,  as  a  ^vitness,  by  a  court  of  justice,  in  due  course 
of  law,"  and,  consequently,  the  same  reasoning  that 
would  require  a  judge  advocate  to  retain  such  a  memo- 
randum would  necessarily  apply  with  equal  force  to 
every  member  of  the  court.  The  loss  of  either  of  these 
would  reveal  at  a  glance  the  vote  of  every  individual, 
and  the  knowledge  of  the  existence  of  such  a  paper  in 
the  possession  of  the  judge  advocate  alone,  would  im- 
douTjtedly  exercise  an  evil  influence  upon  members  in 
their  rigid  administration  of  justice,  as  a  mere  accident 
might  give  publicity  to  the  secret  record.  The  cases 
are  extremely  rare  when  such  information  may  be  re- 
quired b}^  a  court  of  justice,  and  the  evil  that  might 
result  fi-om  a  defective  memory  in  the  event  of  such  a 

*  7 2d  article  of  war. 


128 


MILITARY    LAW    AND    COUETS-ZSIAETIAL. 


call,  would  be  slight  in  comparison  to  the  dangers  to 
the  administration  of  impartial  justice  that  would  as- 
sui'edly  follow  its  universal  practice.  The  inile  then 
should  be,  that  no  ^^ritten  minute  of  the  votes  be  pre- 
served, unless  so  ordered  by  the  unanimous  voice  of  the 
com't. 

As  the  oath  provides  for  the  concealment  of  the  vote 
of  each  particular  member,  it  would  be  a  dii'ect  viola- 
tion of  it  to  say  that  the  vote  was  unanimous,  whether 
for  acquittal  or  conviction,  thus  making  public  the  oj^in- 
ions  of  all.  It  would  also  be  highly  reprehensible  to 
state  what  number  voted  for  the  particular  decision  of 
the  court,  as  it  might  afford  a  clue  to  individual  oj^inions. 

The  conviction  or  acquittal  of  the  prisoner  is  deter- 
mined by  a  TYiajority  of  votes^  except  in  cases  where  the 
law  condemns  him  to  suffer  death  upon  conviction, 
leaving  to  the  court  no  discretion,  as  is  declared  liy  the 
55th  article  of  war,  for  forcing  a  safeguard  in  foreign 
parts,  and  by  the  2d  section,  concerning  spies.*  For  the 
87th  article  of  war  declares  that  no  person  shall  be'  sen- 
tenced to  suffer  death  but  by  the  concurrence  of  iioo- 
thirds  of  the  memhers  of  a  general  court-martial,  nor 
except  in  the  cases  herein  expressly  mentioned,  and 
therefore,  in  the  cases  above  referred  to,  where  the  sen- 
tence of  death  is  affixed  by  the  law  to  his  conviction, 
that  conviction  cannot  be  declared  but  by  a  two-thirds 
vote.  The  record  must  explicitly  state  that  two-thiixls 
of  the  members  concurred  therein,  in  all  such  cases  of 
conviction,  as  well  as  in  all  other  cases  where  the  ac- 
cused is  sentenced  to  suffer  death  at  the  discretion  of 
the  court.     This  is  important  in  the  decision  of  so  grave 

*  See  act  approved  Feb.  IStli,  1862,  sec.  4. 


THE    FINDING.  129 

a  question  as  tliat  of  life  and  death,  and  shows,  more- 
over, that  the  requirements  of  the  law  have  been  strict- 
ly followed. 

Votes  Divided.  Should  the  coui't  be  reduced  to  an 
even  number,  by  its  organization,  or  by  sickness  or 
death,  and  their  votes  be  equally  divided  as  to  the  find- 
ing, the  prevailing  custom  is,  that  the  prisoner  shall 
have  the  benefit  of  an  acquittal. 

The  Verdict.  Instead  of  a  general  verdict  of  guilt  or 
acquittal  upon  the  Avhole  of  every  specification,  the 
court  may  find  a  special  verdict,  that  is,  the  accused  be 
found  guilty  of  a  portion  of  the  specification,  and  not 
guilty  of  the  remainder ;  or  may  find  him  guilty  of  the 
facts  as  set  foi-th  in  the  specification,  but  attach  no  crim- 
inality thereto ;  or  may  find  him  guilty  of  a  portion, 
and  find  the  facts  as  stated  in  the  remainder,  but  declare 
them  void  of  criminality.  The  prisoner  must,  however, 
be  acquitted  or  convicted  of  every  ]3art  of  each  of  the 
several  specifications  and  charges  of  which  he  stands 
accused,  and  the  decision  of  the  court  in  all  their  find- 
ings must  be  specific,  so  that  the  quantum  of  punish- 
ment inflicted  may  be  seen  to  be  proportionate  to  the 
degree  of  guilt. 

The  accused  may  be  found  guilty  of  the  entire  facts 
set  forth  in  the  specifications,  and  yet  be  acquitted  of 
the  charge.  This  may  happen  in  constructive  charges, 
where  the  essence  of  the  charge  and  the  guilt  of  the 
])risoner  rests  on  imputations  built  on  the  facts  alleged 
in  the  specification — as  that  there  was  criminal  knowl- 
edge or  intent — but  of  which  he  has  been  cleared  by 
the  testimony. 

In  illustration  of  the  above,  suppose  the  charge  to  be 
9 


130  MILITARY    LAW    AND    COURTS-MAETIAL. 

laid  under  the  45th  article  of  war,  "  Drunhenness  on 
duty,^''  and  the  accused  be  found  guilty  of  the  specifica- 
tions set  forth  to  cover  the  charge.  In  such  a  case  he 
must  be  found  guilty  of  the  violation  of  the  45th  article 
of  war,  or  be  acquitted.  The  court  cannot  find  the 
accused  guilty  of  the  specifications  as  an  oftence  under 
the  99th  article — "conduct  to  the  prejudice  of  good 
order  and  military  discipline."  "  It  is  true  that  a  court- 
martial  has  cognizance,  under  the  99th  article,  of  all 
offences  against  military  discipline  though  not  named 
in  the  other  articles,  yet  it  is  necessary  that  the  offence 
against  the  99th  article  shall  be  duly  and  regularly 
charged,  in  order  that  the  accused  may  have  notice  of 
that  to  which  he  is  to  answer.  A  charo-e  of  one  of  the 
specific  offences  defined  in  other  articles  of  war  is  not 
notice  of  a  general  charge  of  some  disorder  or  neglect 
within  the  purview  of  the  99th  article.* 

Again :  on  the  charge  of  "  conduct  tinhecomlng  an  offi- 
cer and  a  gentleman^''  the  coiu't  returned  a  special  find- 
ing upon  the  specifications,  and  the  foUo^Hng  finding 
upon  the  charge :  "  Not  guilty  of  the  charge,  but  guilty 
of  conduct  unbecoming  an  officer,  and  to  the  prejudice 
of  good  order  and  military  discipline." 

"  There  is  no  such  offence  known  to  the  articles  of 
war  as  conduct  un1  )ecoming  an  officer.  The  unbecoming 
conduct  of  a  commissioned  officer  of  which  the  law  takes 
notice,  and  authorizes  a  court-martial  to  take  cognizance, 
is '  conduct  unbecoming  an  officer  and  a  gentleman.'  There 
is  no  minor  indecorum,  no  unbecoming  conduct  not  un- 
becomino-  an  officer  and  a  c-entleman,  that  the  law  submits 
to  the  jurisdiction  of  a  court-martial,  and  the  court  in  pro- 

*  G.  0.  No.  7,  War  Department.  Juno  18th,  1856. 


THE    FINDING.  131 

noimcing  tlie  conduct  of  Lieutenant  S '  not  nnhe- 

coming  an  officer  and  a  gentleman/  have  acquitted  liim  of 
the  legal  charge  before  them.  At  the  same  time  they 
give  judgment  against  him  under  the  99th  article  of  war. 
He  was  not  charged  with  any  offence  under  that  article. 
If  charges  are  so  drawn  as  to  bring  them  expressly,  and 
exclusively,  under  particular  articles  of  war,  a  court- 
martial  cannot  convict  under  other  articles. 

"  The  sentence  of  .the  court-martial  in  this  case  is, 
therefore,  voiciy^' 

Again :  on  the  charge  of  "  illegal  conduct  to  tlie lyrejii- 
dice  of  good  order  and  military  discipline,^''  the  court 
confirm  the  2^1ea  of  guilty  made  by  the  accused  to  the 
1st  and  2d  specifications,  "find  the  facts  set  forth,  but 
attach  no  criminality  thereto."  The  following  was  the 
decision  thereon.  "  In  this  trial,  it  was  shown  by  the 
defence,  that  the  citizen  who  was  flogged  at  the  guard- 
house, had  entered  the  baiTacks,  armed,  and  beat  a  sol- 
dier; and  that  no  civil  trilnmal  to  punish  the  offence 
was  nearer  than  one  hundred  and  seventy  miles.  But 
shall  the  army  assume  to  remedy  the  defects  of  the  ad- 
ministration of  the  civil  laws?  A  court-martial  has 
here  adjudged  that  no  ^vrong  is  done  by  an  officer  who 
causes  his  miard  to  floo;  a  citizen.  *  *  *  The  virtual 
ac(]uittal  on  the  1st  and  2d  specifications  is  disap- 
})r()ved.f 

Asrain :  at  a  court-martial,  the  accused  is  convicted 
of  "  signing  a  false  certificate  of  transportation,^'  but 
acquitted  of  signing  the  same  "  Tcnoivingly^'  whirh  \vas 
the  fraudulent  intent  imputed  to  him  in  the  matter. 

*  G.  0.  No.  8,  War  Department,  July  23d,  1856. 
f  G.  0.  No.  Q,  War  Department,  June  21st,  1858. 


132  JIILITAKY    LAW    AND    COURTS-MAKTIAL. 

The  "War  De2:)artmeut  was  of  opinion  that  this  finding- 
entitled  the  accused  to  an  acquittal,  and  is  in  legal  effect, 
an  acquittal. 

"  It  is  not  necessary  in  military  charges  to  allege  that 
the  acts  were  done  'maliciously,'  or  'wilfully,'  or 
'knowingly.'  A  specification  of  fact  is  good  without 
such  expressions.  But  if  they  are  alleged,  and  are  neg- 
atived T)y  the  court  in  their  verdict,  then  the  inference 
from  the  fact  fails,  and  the  accused  l)eing  acquitted  of 
the  intention,  is  acquitted  of  the  offence.  That  is  cer- 
tainly the  legal  effect  and  meaning  of  such  finding. 
What  other  meaning  was  in  the  mind  of  the  court,  is 
matter  of  dou})t.  They  find  that  the  accused  did  not 
'  hioioinglif  sign ;  meaning,  probably,  that  he  did  not 
know  the  certificate  was  false.  Then  did  he  sign  it  in 
good  foith,  to  the  best  of  his  knowledge  and  belief?  or 
in  such  ignorance  and.  disregard  of  what  he  certified  as 
made  the  certificate  an  act  of  bad  faith  ?  In  that  find- 
ing of  the  specification,  it  sustains  the  charge.  But  the 
court  negative  the  charge,  and  therefore  reject  that 
sense  of  the  specification."* 

Although  it  be  settled  that  a  prisoner  cannot  be  con- 
victed of  an  offence  different  from  that  with  which  he  is 
charged,  it  is  equally  well  established,  that  a  coui't-mar- 
tial  can  convict  of  a  lesser  degree  of  the  same  offence  al- 
leged against  him.  It  is  therefore  necessaiy  to  note  the 
distinctions,  if  any,  between  the  crime  charged  and  the 
actual  degree  of  offence  proved.  A  prisoner  may  be 
acquitted  of  the  charge  of  desertion.,  but  be  convicted  of 
the  lesser  offence  absence  witliout  leave.  Although  these 
two  oftences  are  to  be  found  in  two  distinct  articles  of 

*  G.  0.  No.  28,  War  Department,  Dec.  31st,  1859. 


THE    FINDING.  133 

war,  yet  desertion  is  Init  an  aggravated  degree  of  the 
crime  of  al)sence  witliout  leave,  and  necessarily  includes 
it;  the  intention  not  to  retw'n  constituting  the  aggrava- 
tion. The  new  British  mutiny  act  and  articles  of  war 
of  1852,  contain  a  provision  that  soldiers,  tried  for 
desertion,  "may  thereupon  l)e  found  guilty  either  of 
desertion  or  absence  without  leave,"  thus  lesT-alizino; 
what  has  been  the  universal  practice  in  that  service. 

While  a  court  may  convict  of  a  lesser  kindred  offence, 
it  cannot,  under  any  circumstances,  find  the  accused 
guilty  of  a  higher  degree  of  criminality  than  that  alleged 
in  the  charge. 

The  various  degrees  of  culpability  must  be  taken  into 
consideration  for  every  act  that  may  be  divided  into 
offences  of  greater  or  less  magnitude,  and  the  court 
should  confine  themselves  to  the  evidence  of  commission 
of  the  crime  specified,  when  deliberating  upon  the  ques- 
tion of  guilt  or  innocence.  Any  evidence  in  mere  ^:>a^//- 
ation  or  extenuation  must  be  allowed  its  due  effect  upon 
the  sentence  and  not  upon  the  finding.  A  soldier  strik- 
ing his  superior  officer  being  in  the  execution  of  his 
office,  must  be  found  guilty  of  a  violation  of  the  9th 
article  of  war — mutiny — and  the  extenuating  circum- 
stance that  he  struck  under  the  wild  excitement  of  ex- 
cessive provocation,  can  only  be  considered  when  decid- 
ing upon  the  sentence. 

Tiic  inaiaiicr  in  which  an  acquittal  is  expressed^  often 
varies,  and  the  difterent  formula  used  convey  a  more  or 
less  favorable  judgment  on  the  innocence  of  the  accus- 
ed. Sucli  an  acquittal  as  that  "  the  charges  are  not 
proved"  should  never  be  recorded,  as  it  is  calculated  to 
strengthen  the  imputation   engendered  by  the  charge. 


134  MILITARY    LAW    AND    COUKTS-MARTIAL. 

and  nuiy  prove  most  injurious  to  tlie  accused,  especially 
iu  siicli  cases  as  affect  the  lioiior  of  an  officer.  The 
court  is  sworn  to  truly  try  and  determine  the  matter 
before  them  according  to  the  evidence^  and  where  the 
evidence  does  not  prove  the  guilt  of  the  prisoner,  he  is 
entitled  to  an  acquittal  on  that  just  and  reasonable 
maxim,  that  in  the  eye  of  the  law  the  accused  is  inno- 
cent until  ])roved  to  be  guilty. 

FrSva53«sus  and  voxatiou**  aecu!«atioiis    frrowin""    OUt  of 

the  personal  ill-will  and  animosity  of  the  accuser,  being 
developed  in  the  course  of  the  trial,  have  been  made 
the  suljject  of  severe  censure  hy  courts- martial,  and  their 
observations  have  met  with  the  approval  of  the  revising 
authority.  So  also  has  it  been  declared  that  the  accuser 
was  only  actuated  by  a  sense  of  duty  and  a  sincere  re- 
gard for  the  benefit  of  the  service,  or  that  his  conduct 
has  be,en  honorable  and  impartial;  such  remarks  being 
called  for  by  the  insinuations  of  the  prisoner,  unsup- 
ported by  evidence.  Such  ol^servations  for  or  against 
the  accuser  may  accompany  either  an  acquittal  or  con- 
viction. 

Coui'ts-martial  may  animadvert  on  the  conduct  of  wit- 
nesses, and  cases  have  arisen  in  the  British  service  where 
officers  have  been  stricken  from  the  rolls  of  the  army 
for  their  conduct  as  witnesses  before  a  court,  "as  amply 
borne  out  l)y  the  minutes  of  their  evidence,"  and  in 
consequence  of  the  serious  animadversions  passed  by  the 
court  on  such  conduct.  Courts-martial  have  sometimes 
observed,  in  terms  expressly  charging  perjury  or  false- 
hood, on  the  mode  in  w^hich  witnesses  have  delivered 
their  testimony ;  sometimes  they  have  imi^lied  censure, 
at  others  praise.     They  have  also  observed  on  the  causes 


THE    FINDING.  135 

wliicli  liave  led  to  the  trial,  implicating  the  conduct  of 
individuals  not  before  the  court,  but  this  should  only  be 
resorted  to  in  extreme  and  particular  cases,  as  it  seems 
opposed  to  the  most  obvious  principle  of  justice,  that  an 
individual  should  not  ])e  censured  unheard,  unless  he 
purposely  keeps  out  of  the  way  to  mthhold  evidence 
which  he  may  be  competent  to  afford.* 

"  The  question  having  been  raised  of  the  authority 
of  a  general  court-martial,  by  proper  animadversions, 
to  bring  to  the  notice  of  the  military  commander,  to 
whom  the  proceedings  are  sent,  any  conduct  of  the 
prosecutor  or  other  military  persons,  which  may  be  de- 
veloped before  the  court  in  the  due  course  of  trial,  the 
general-in-chief  thinks  it  proper  to  affirm  such  right  in 
clear  cases,  as  one  well  settled  by  the  practice  of  armies 
and  that  its  judicious  exercise  tends  to  promote  justice 
and  discipline. "f 

In  all  such  cases  of  misconduct,  it  is  proj^er  that  the 
animadversions  of  the  court  should  be  clear  and  specific, 
and  in  a  manner  that  might  be  acted  upon  by  the  re- 
^dsing  authority,  with  a  view  to  bringing  the  offender 
T)efore  a  court-mai-tial  for  trial.  This  power  of  observ. 
ing  upon  and  censuring  any  inconsistencies  or  prevarica- 
tions of  witnesses,  must  be  exercised  with  regard  to  mil- 
itary persons  only,  who,  if  the  opinions  expressed  be 
erroneous,  can  appeal  to  superior  authority  for  immedi- 
ate redress.  In  the  case  of  civilians  so  censured,  eveiy 
individual  member  of  the  court  would  be  liable  to  an 
action  for  defamation  on  the  part  of  the  person  so  cen- 
sm-ed,  who  could  obtain  no  redress  except  through  pro- 
cess at  law. 

♦Simmons,  p.  257.  f  G.  0.  No.  3,   January  27th,  1853. 


136  MILITAEY   LAW    AND    COUIITS-MAKTIAL. 

The  votc§  on  the  finding  having  been  received  by  tlie 
judge  advocate,  are  submitted  to  the  court.  It  is  not 
necessary  that  the  opinions  be  given  viva  voce^  as  the 
law  merely  requires  that  the  members  "  in  giving  their 
votes,  are  to  begin  ^Y\ih  the  youngest  in  commission ;"  the 
evident  intent  of  the  article  being  that  the  younger  mem. 
bers  may  not  be  influenced  by  the  opinions  of  those  more 
experienced.  In  important  cases,  and  when  deemed  es- 
sential, each  member  ^^Tites  on  a  slip  of  paper  his  name 
and  the  opinion  guilty,  or  )iot  guilty,  or  mth  such 
modifications  and  exceptions  as  are  just.  These  slips 
are  handed  to  the  judge  advocate,  who  announces  the 
verdict.  Should  there  not  be  a  majority  or  number 
suflScient  to  determine  it,  the  fact  is  stated,  and  after 
farther  discussion,  another  vote  is  taken,  until  the  find- 
ing is  declared.  The  mode  is  followed  upon  every 
specification  and  charge,  and  it  has  the  advantage  of 
concealing  the  votes  of  the  individual  members  until  a 
verdict  is  adopted,  when  the  opinion  of  each  member  is 
read  aloud  by  the  judge  advocate. 

The  fiiifiiiig  thus  declared,  is  the  decision  of  the 
court.  Should  the  vote  upon  it  not  have  been  unani- 
mous, the  minority  are  however  strictly  bound  by  the 
decision. 


CHAPTER  XII. 

THE  SENTENCE. 

HAvma  in  their  finding,  declared  the  innocence  or 
guilt  of  the  prisoner,  the  court  then  pronounce  his 
acquittal,  or  proceed  to  award  punishment  according  to 
the  nature  and  degree  of  the  offence. 

Piini$«iimeiits.  The  punishments  which  courts-martial 
have  the  power  to  award  are  e\i\Qv  2y6remptory^  that  is, 
specially  enjoined  by  the  letter  of  the  Avritten  law  for  a 
sj)ecified  offence;  or  discretionary^  that  is,  where  the 
kind  is  specified  but  discretion  as  to  quantity  is  left  to 
the  court,  or,  where  neither  kind  nor  quantity  being 
specified,  both  are  left  to  the  discretion  of  the  couii,  the 
same  being  authorized  by  the  rules  and  articles  of  war, 
or  in  accordance  with  the  custom  of  service.  For  in- 
stance, the  83d  article  enacts  that  "  any  commissioned 
officer  convicted  before  a  general  court-martial  of  con- 
duct unl)ecoming  an  officer  and  a  gentleman,  shall  be 
dismissed  the  service."  The  act  of  the  court  in  2-)assing 
sentence  in  such  a  case,  is  therefore  ministerial  rather 
than  judicatory.     A  majority  finds  and  sentences. 

Where  death  is  the  fixed  penalty  for  a  crime  commit- 
ted, the  finding  Q>i  fjuilt  must  be  passed  l)y  a  two-thirds 
vote,  because  the  death  penalty  which  immediately 
attaches  to  conviction  in  this  case,  requires  a  two-thirds 


138  MILITAPwY    LAW    AND    COUETS-MAKTIAL. 

vote  for  its  infliction.  For  instance,  the  55tli  article 
states  that  "  whosoever,  belonging  to  the  armies  of  the 
United  States  in  foreign  parts,  shall  force  a  safeguard, 
shall  suffer  death."*  Here  the  court  is  the  mere  mouth- 
piece of  the  law  to  pronounce  the  punishment  fixed  by 
it,  and  therefore  the  guilt  that  carries  death  with  it, 
must  be  declared  by  the  same  voice. 

In  most  cases,  however,  the  articles  of  war  do  not 
annex  a  fixed  and  invariable  punishment  for  oftences, 
and  as  courts-martial — except  in  sentences  to  sufter 
death — declare  their  opinion  by  a  majority  of  votes,  the 
question  arises,  how  far  the  minority  is  houiid  hy  the 
findiing  of  the  majority^  when  the  sentence  is  to  be  de- 
termined %  There  can  be  no  doubt  that  the  oj^inion  of 
the  majority  is  the  opinion  of  the  court,  else  on  an  in- 
terlocutory decision  as  to  the  admission  of  evidence  the 
minority  may  decline  to  be  influenced  by  the  testimony 
which,  according  to  their  individual  judgment,  was  ir- 
regularly admitted.  Unanimity  of  opinion  in  questions 
of  law  and  fact  is  a  bare  possiljility,  and  such  a  require- 
ment would  efifectually  bar  the  administration  of  justice. 
It  must  also  be  considered  that  a  court-martial  acts  in 
the  twofohl  capacity  of  judge  and  jury;  as  judge,  to 
administer  justice;  as  juiy,  to  truly  try  and  determine 
according  to  evidence ;  and  as  the  law  has  nowliere  in- 
trusted this  last,  or  any  other,  function  to  a  fraction 
only  of  the  court,  the  finding  of  the  verdict  is  the  find- 
ing of  the  court  as  a  jury,  and  exhausts  theii-  powers  as 
jurors.  In  proceeding  to  the  sentence  they  act  in  the 
capacity  of  judges,  independent  of  their  individual 
votes  as  jurors,  to  award  ])unishment  equal  and  adequate 

*  See  act  approved  Fcbrbary  13th,  1SG2,  section  5. 


TUE    SENTENCE.  139 

to  that  degree  of  guilt  declared  l)y  tlie  court,  as  a  jury. 
In  other  words,  tlie  court  is  to  administer  justice  on  a 
person  already  convicted. 

The  sentence  of  the  court,  in  cases  not  discretionary, 
is  in  strict  accordance  with  the  finding:,  and  must  be  in- 
flicted  by  the  court,  in  obedience  to  the  law,  regardless 
of  individual  sympathies  or  opinions.  Here  the  court, 
as  judge,  passes  the  sentence  fixed  l>y  the  law  to  the 
crime  of  which  the  prisoner  has  been  convicted  by  the 
court  as  jury ;  not  by  a  unanimous  voice,  but  at  most 
by  a  two-thirds  vote,  the  extreme  vote  required  l)y  the 
law.  It  is  therefore  the  duty  of  each  member  to  vote 
on  the  sentence  regardless  of  the  fact,  that  on  the  find- 
ing, his  vote  was  for  an  acquittal.  Each  member  must 
not  only  vote,  but  must  discard  all  personal  sympathies, 
and  act  without  partiality,  favor,  or  affection ;  for  were 
the  minority  to  vote  for  the  most  lenient  sentence  be- 
cause of  their  individual  belief  in  his  innocence,  and  re- 
gardless of  the  verdict,  the  punishment  awarded  might 
be  very  disproportionate  to  the  degree  of  offence,  and 
not  in  unison  with  the  requirements  of  justice. 

Simmons  cites  a  case  that  occurred  in  India  in  1830, 
and  the  decision  of  the  commander-in-chief  ^vas,  that 
"  Upon  a  finding  of  guilty  by  a  court-martial,  I  am  of 
opinion,  that  although  all  the  members  of  the  coui-t  may 
not  have  concuiTed  in  it,  it  must  be  deemed  the  finding 
of  the  whole ;  and  the  members  who  voted  for  acquittal, 
may  be  called  upon  to  vote  upon  the  punishment  to  be 
awarded  on  the  prisoner,  as  if  they  had  concurred  in 
the  finding  of  guilty."*  The  practice  of  our  service  is 
in  accordance  with  this  rule,  and  may  be  considered  as 

*  Page  2G8. 


140  MILITARY    LAW    AND    COUETS-MAETIAL. 

a  positive  and  certain  rule  for  tlie  guidance  of  courts- 
martial. 

Votes.  If  a  member  should  vote  for  death,  which  is 
not  earned  by  two-thii'ds  of  the  court,  he  must  vote 
some  other  punishment.  All  members  must  vote  some 
legal  sentence,  and  if  that  which  any  member  votes  for 
is  not  carried,  some  punishment  must  be  voted  till  a 
majority  agree  as  to  one  punishment. 

Should  the  cornet  be  equally  divided  as  to  the  nature 
or  quantum  of  punishment,  the  practice  has  been  to 
give  the  prisoner  the  benefit  of  the  more  lenient  judg- 
ment. This,  however,  seldom  happens,  as  on  the  recon- 
sideration of  the  question,  some  member  is  apt  to  be 
found  to  lean  to  the  side  of  mercy,  and  the  ultimate 
opinion  of  the  majority  is  the  decision  of  the  court. 

The  court  may  adjourn  from  day  to  day  to  consider 
their  finding  or  sentence.  This  power  in  a  court-martial 
to  take  time  for  deliberation,  is  of  great  importance  in 
militaiy  trials;  enabling  the  members  to  consult  au- 
thorities and  inform  themselves  upon  questions  involv- 
ing legal  proprieties.* 

With  regard  to  the  ivonUng  of  the  sentence,  no  par- 
ticular form  is  necessary  in  cases  that  are  discretionary 
with  the  court,  except  that  it  be  expressed  in  clear  and 
unaml^iguous  language.  In  peremptory  cases  the  sen- 
tence should  be  expressed  in  the  very  words  of  the  stat- 
ute, to  obviate  all  doubt  and  cavil. 

Capital  Puiiishmcnt.  The  custom  of  war  has,  in  the 
absence  of  statutoiy  law  to  that  effect,  deteimined  that 
capital  punishment  be  inflicted  Ijy  shooting  or  hanging. 
Mutiny,  desertion,  or  other  militaiy  crime  is  commonly 

*  Do  Hart.  p.  19:;.  • 


THE    SENTENCE.  141 

punished  by  shooting ;  a  spy  is  always  hanged^  and 
mutiny  accompanied  by  loss  of  life  is  punished  in  the 
same  manner ;  the  mode,  in  all  cases,  should  be  declared 
in  the  sentence. 

Motives.  Where  the  law  has  left  the  sentence  dis- 
cretionaiy  with  the  coui't,  allusion  may  be  made  to  the 
motives  that  have  actuated  it  in  determining  the  sen- 
tence, as  for  instance;  "The  court  is  thus  lenient,  be- 
lieving the  accused  to  have  acted  more  from  thought- 
lessness than  from  any  intention  of  wi^ong." 

In  illustration  of  the  above,  the  following  sentences, 
and  decisions  thereon,  are  cited : 

1.  The  court  find  the.  prisoner  ''^  guilty'^''  of  tJie  specifi- 
cation to  the  1st  charge^  and  "not  guilty"  of  the  1st 
charge,  and  "  not  guilty"  of  the  2d  charge  and  its  speci- 
fication, and  do  sentence  him  "  to  forfeit  his  pay  for  six 
months,  and  to  be  confined  at  hard  labor  during  the 
same  period."  The  proceedings  of  the  court  in  this  case 
are  disappi'oved ;  the  court,  although  finding  a  part  of 
the  facts  alleged  against  the  prisoner,  having  acquitted 
him  of  both  the  "  charges  preferred,  proceeded  iri'egular- 
ly  in  passing  sentence  upon  him."* 

2.  The  attention  of  courts-martial  is  directed  to  so 
much  of  the  18th  section  of  the  act  of  March  16th,  1802, 
as  provides,  that  a  deserter  shall  be  "  liable  to  serve,  for, 
and  during  such  a  period,  as  shall  with  the  time  he  may 
have  served  previous  to  his  desertion,  amount  to  the 
full  term  of  his  enlistment."  This  provision  not  being 
positive,  it  is  necessary  .to  embody  in  the  sentence  of 
the  court,  in  every  case  of  the  conviction  of  a  deserter, 
that  he  shall  make  good  the  time  lost  by  his  absence 

*  G.  0.  No.  G9.  Ilead-Quartcrs  of  tlio  army,  Dec.  30tli,  1843. 


142  .MILITARY    LAW    AIsT)    COUKTS-MAETIAL. 

from  the  service — if  such  be  the  intention  of  the  coilft  * 
By  the  general  regulations,  in  reckoning  the  time  of  ser- 
vice, the  deserter  is  to  be  considered  in  service  when 
delivered  up  as  such  to  the  j^roj^er  authority. 

3.  As  doubts  have  arisen  in  regard  to  the  2:)unishment 
which  a  court-martial  may  inflict  under  the  45th  article 
of  war,  on  non-commissioned  officers  and  soldiers,  it  is 
deemed  advisal)le  not  to  charge  offences  under  that  arti- 
cle, but  under  the  99th  article. 

Courts-martial,  except  in  cases  which  may  arise  under 
the  32 d  article  of  war,  have  not  authority  to  find  a  ver- 
dict of  debt  against  a  soldier,  and  to  direct,  by  their 
sentence,  the  pajTuent  of  debts  to  sutlers  or  other  per- 
sons. They  may,  if  they  see  fit,  in  order  not  to  deprive 
a  soldier  of  the  means  of  discharging  honestly  his  proper 
pecuniary  obligations,  ascertain  the  amount  due  from 
him  to  the  sutler  and  laundress,  and  except  that  amount, 
as  a  sum  stated^  from  the  fine  or  forfeiture  imposed  in 
the  sentence;  but  such  amount  so  excepted,  must  be 
paid  to  the  soldier,  and  the  court  cannot  direct  its  pay- 
ment to  any  other  person.f 

A  court-martial  cannot  assign  and  make  over  the  j^ay 
of  a  soldier  to  any  other  person,  and  the  receipt  of  such 
person  will  not  be  a  sufficient  voucher  for  the  dislnirs- 
ing  officer.  Nor  can  a  soldier  be  required  to  receipt  for 
money  i)aid  without  his  consent  to  another  jDerson.  The 
law  jDrohibits  any  receipt  or  voucher  in  accounts  of 
public  money,  unless  the  full  amount  of  the  receij^t  is 
paid  to  the  person  who  signs  it.  J 

*  G.  0.  No.  45,  Head-Quarters  of  the  army,  July  15th,  1843. 
f  G.  0.  No.  51,  Head-Quarters  of  the  army,  April  3d,  1851. 
X  G.  0.  No.  2,  War  Department.  Feb.  28th,  1857. 


TIIE    SENTENCE.  143 

Record.  Every  court-inartiMl  shall  keep  a  complete 
and  accurate  record  of  its  proceedings,  to  be  autlieuti- 
cated  by  the  signatures  of  the  president  and  judge  advo- 
cate ;  who  shall  also  certify,  in  like  manner,  the  sentence 
pronounced  by  the  court  in  each  case.  When  the  sen- 
tence is,  therefore,  entered  upon  the  record,  it  is  signed 
by  the  president  and  judge  advocate. 

ifiodiSyiii^  iiic  Sentence.  At  any  time  previous  to  theii" 
final  adjournment,  the  court  are  competent  to  modify  or 
change  the  sentence  already  passed  by  them. 

In  the  case  of  Peter  Williamson,  tried  in  June,  1819, 
for  desertion,  and  to  which  he  pleaded  guilty,  the  court 
sentenced  him  to  "confinement  at  hard  labor  with  a 
ball  and  chain,  <fec. ;"  but  on  the  ensuing  day,  at  the  sug- 
gestion of  a  member,  the  sentence  was  reconsidered,  and 
after  due  deliberation  the  court  substituted  the  follow- 
ing :  "  That  he,  the  said  Peter  AVilliamson,  be  shot  to 
death."  The  question  was  submitted  to  the  attorney- 
general,  whether  the  court  had  the  power  to  change  the 
sentence,  as  above  stated  ? 

"  In  courts  of  civil  jurisdiction,  when  sitting  even  in 
ciiminal  cases,  the  court  is  not  concluded  by  an  opinion 
they  may  have  expressed  in  any  one  day,  but  has  the 
power  to  reconsider,  the  whole  subject  being  completely 
within  its  control  until  the  end  of  the  term.  And  I  am 
not  apprised  of  any  difference  in  the  powers  of  the  two 
courts  over  the  subjects  which  severally  belong  to  them 
during  the  continuance  of  their  respective  terms.  If  a 
civil  court  of  criminal  jurisdiction,  therefore,  may  law- 
fully reconsider  and  alter  during  the  teiiu,  any  opinion 
which  it  may  have  pronounced  on  a  previous  day  of  the 
same  term ;  so,  in  like  manner,  I  conceive  may  a  court- 


144  MILITARY    LAW    AXD    COURTS-MAKTIAL. 

martial.  *  *  *  ^  general  court-martial  convened 
for  general  purposes,  continues  a  court  with  full  powers 
while  it  has  any  business  to  do,  of  which  it  alone  is  the 
judge ;  and  while  it  does  so  continue  a  court,  its  power 
of  judicial  deliberation  and  decision  over  all  the  subjects 
which  may  have  been  brought  before  it  is  as  fidl  on  the 
last  day  of  its  sittings  as  on  any  preceding  day.  I  am 
of  the  opinion  that  the  court  had  the  power  to  alter  the 
opinion  they  had  expressed  on  the  preceding  day,  and 
that  their  final  opinion  is  regularly  and  legally  pro- 
nounced.'-* 

The  alcove  opinion  covers  the  case  where  the  coui-t, 
with  the  same  members,  made  both  decisions.  There 
seem  to  be  doubts  entertained  wlietlier  tills  power  is 
vested  in  a  miitilated  court.  "  However  it  may  be  as- 
serted that  the  usage  and  laws  of  coui*ts-mai*tial,  may 
sanction  the  right  of  the  court  to  annul  and  entirely 
change  their  j^ositive  decision  at  any  time  before  their 
final  adjournment,  yet  it  is  a  right  which  should  be 
cautiously  exercised,  and  only  on  obvious  and  extraor- 
dinary occasions.  In  the  present  instance,  a  full  coui't 
acquitted  the  prisoner ;  and  upon  the  next  day  a  muti- 
lated court — one  member  being  absent — undertake  to 
rescind  the  judgment  of  the  previous  day,  and  to  pro- 
nounce the  accused  guilty  and  sentence  him  to  punish- 
ment. To  justify  such  a  reversal,  the  coui-t  should  l)e 
as  fidl,  and  constituted  precisely  as  it  was,  ^vhen  the  first 
judgment  was  pronounced.  In  consequence  of  this 
irregular  it}',  the  proceedings  of  the  court  are  disap- 
proved."f 

*  Opinions,  Aug.  29th,  1819. 

f  G.  0.  Xo.  40,  War  Department  Oct.  14tli,  1844. 


THE    SENTENCE.  145 

Tliis  view  of  tlie  case  is  not,  however,  upheld  by  a 
recent  opinion  of  the  attorney-general,  in  which  it  was 
decided,  that  the  absence  of  members,  on  the  reassem- 
bling of  the  court  by  the  proper  authority  for  the  revis- 
ion of  the  original  proceedings,  did  not  invalidate  its 
final  action,  provided  always  that  the  number  reassem- 
bled did  not  fall  below  the  minimum  fixed  by  law.* 

Recommendation.  Should  one  or  more. members  see 
fit  to  recommend  the  prisoner  to  mercy,  because  mitiga- 
ting circumstances  have  appeared  during  the  trial  which 
could  not  be  taken  into  consideration  in  determining 
the  degree  of  guilt,  or  the  extent  of  punishment,  their 
recommendation  will  not  be  embraced  in  the  body  of 
the  sentence.  It  is  provided  by  regulation  that  those 
meml)ers  only  who  concur  in  the  recommendation  will 
sign  it.  They  should  carefully  avoid  pointing  out  any 
particular  mode  in  which  the  prisoner  may  be  deem- 
ed worthy  the  clemency  of  the  reviewing  authority. 

The  recommendation,  not  heing  an  act  of  the  court., 
but  the  mere  expression  of  the  wish-es  and  opinions  of 
the  indi^^duals  who  sign  it,  must  not  be  entered  as  part 
of  the  proceedings,  but  be  appended  to  them.  It  does 
not  of  necessity  indicate  the  votes,  uj)on  the  finding  or 
sentence  of  the  subscribing  members,  but  has  the  ef- 
fect of  directing  the  attention  of  the  reviewing  author- 
ity to  those  parts  of  the  evidence  that  tend  to  mitigate 
the  gravity  of  the  offence. 

*  Opinions,  July  12th,  1855. 
10 


CHAPTEE    XIII. 

EEVISION  AND  CONFIEMATION  OF  SEN- 
TENCE. 

By  tlie  ^Uh  article  of  wai\  it  is  prescribed  that  "  no 
sentence  of  a  court-martial  shall  be  carried  into  execu- 
tion until  after  the  whole  proceedings  shall  have  been 
laid  before  the  officer  ordering  the  same,  or  the  officer 
commanding  the  troops  for  the  time  being ;  neither 
shall  any  sentence  of  a  general  court-martial,"  <fec.* 

Revision.  There  is  no  special  authority  given  to  re- 
mit the  proceedings  back  to  a  court-martial  for  reconsid- 
eration or  re^dsion,  unless  it  be  implied  in  the  above- 
quoted  article,  in  the  words  "for  his  confirmation,  or 
disapproval  and  orders  in  the  case^  But  this  power 
seems  to  flow  directly  from  the  very  constitution  of 
courts,  as  a  consequence  of  the  right  of  confirming  and 
disapproving  the  sentence  ;  it  has  been  fixed  by  the  cus- 
tom of  war,  in  the  absence  of  special  legislation,  and  is 
now  the  established  practice  in  our  service. 

In  the  British  service,  the  mutiny  act  of  1750  pro- 
hibits the  approving  authority  from  sending  back  the 
case  for  revision  more  than  once.  Although  there  is  no 
such  restriction  in  our  rules  and  articles,  the  belief  has 
been  expressed  by  high  legal  authority,  that  this  power 

♦See  act  approved  December  24th,  1861. 


REVISION    AND    CONFIRMATION.  147 

is  under  the  same  limitation  as  in  Great  Britain,  and  l)y 
equally  liigli  authority,  that  in  our  service  the  proceed- 
ings may  be  remanded  as  often  as  the  superior  author- 
ity shall  deem  necessary  for  attaining  the  purposes  of 
justice.  A  single  revision  would  seem  to  be  ample  and 
sufficient  to  meet  the  ends  of  justice ;  its  object  being 
to  permit  the  court  to  reconsider  their  action  ^vith  the 
aid  of  the  new  light  thrown  upon  the  case  by  the  re- 
marks of  the  revie'wdng  authority. 

Xone  other  than  the  approving  authority  has  the 
right  to  send  back  the  proceedings  for  re^asion,  nor  can 
this  be  done  in  any  case,  after  the  court  has  been  dis- 
solved by  this  same  authority. 

Proceedings.  No  witness  shall  be  examined,  nor  ad- 
ditional evidence  received  by  a  court-martial  on  revision. 
The  court  does  not  rehear  the  case,  but  confines  itself 
exclusively  to  a  reconsideration  of  the  record  for  the 
pui'pose  of  coiTecting  or  modifying  any  conclusions 
thereon,  and  weighing  with  impartiality  the  suggestions 
made  by  the  reviewing  authority.  The  court  cannot 
alter  or  obliterate  any  part  of  their  previous  proceed- 
ings, or  expunge  from  the  record  any  testimony,  al- 
though illegally  admitted.  The  proceedings  of  the 
court  during  the  reconsideration,  together  with  the  writ- 
ten instructions  from  the  approving  power,  must  be 
made  up  separate  and  distinct,  and  appended  to  the 
])revi()us  record,  leaving  the  latter  perfectly  intact. 

€auMC!4.  The  principal  cause  for  requiring  courts- 
martial  to  revise  their  judgments  is,  where  an  insuffi- 
cient or  undue  weight  has  been  given  to  the  testimony, 
and  is  supposed  to  have  arisen  from  inadvertence,  mis- 
conception of  the  law,  or  the  custom  of  war ;  or  where 


148  MILITARY    LAW    AND    COURTS-MAETIAL. 

an  exorbitant,  inadequate,  or  illegal  punisliment  lias 
been  awarded.*  Any  illegality  as  to  the  constitution 
of  the  court,  or  any  defect  in  its  composition,  cannot  be 
amended  on  revision ;  neither  can  any  illegality  as  to 
the  charge  be  remedied.  Such  flaws  must  of  necessity 
invalidate  the  proceedings  to  such  a  degree  as  to  render 
any  sentence  or  finding  entii'ely  innoxious  to  the  accus- 
ed, and  so  entirely  annihilates  the  court  as  to  expose 
him  to  trial  by  another  coui't. 

New  Trial.  If  the  court  be  a  legal  court  of  competent 
jurisdiction,  and  act  illegally,  the  prisoner  cannot  be 
again  tried  except  on  his  owti  motion  for  a  new  trial. 
If  it  be  an  illegal  court,  all  its  proceedings  are  null  and 
void  ab  initio^  and  there  thus  being  no  trial,  the  accused 
may  be  brought  before  a  proper  court  to  be  tried.  If 
the  court  be  a  legal  court  but  without  competent  juris- 
diction, a  trial  by  such  a  court  is  not  a  valid  plea  in  bar 
of  trial  before  a  legal  court  of  competent  jurisdiction.  As, 
for  instance,  taking  an  extreme  case,  the  trial  of  a  commis- 
sioned officer  by  a  regimental  or  garrison  court  would 
not  be  considered  a  good  plea  in  bar.  The  67th  article 
states  that  "No  garrison  or  regimental  court-martial 
shall  have  the  power  to  tiy  capital  cases  or  commis- 
sioned officers."  Yet  the  trial  of  an  officer  by  such  in- 
ferior com-t,  is  a  trial  by  an  intrinsically  legal  court, 
tnie,  but  having  no  jurisdiction  over  such  individuals, 
its  action  is  as  void  as  if  cognizance  of  a  military  offence 
was  taken  by  an  ecclesiastical  court.  An  inferior  court 
has  no  law^il  cognizance  where  the  trial  of  an  officer 
is  concerned,  and  its  action  is  null  and  void  from  its 
very  inception. 

*  De  Hart,  p.  205. 


KEVISION    AND    CONFIRMATION.  149 

A  new  trial  may  also  be  granted,  when  tlie  finding 
of  a  court-martial  is  founded  on  irrelevant  matter^  or  is 
not  supported  hy^  or  is  contrary  to  the  recorded  ttstimony. 
In  the  case  of  Captain  Hall,  tried  by  a  general  court- 
martial  in  1818,  and  sentenced  to  be  cashiered,  which 
sentence  was  disa])23roved,  an  appeal  was  made  by  the 
prisoner  to  the  President,  on  the  ground  that  the  coiui: 
had  excluded  certain  evidence  that  was  both  legal  and 
material  for  the  defence.  The  new  court  ordered  for 
his  trial,  refused  to  arraign  the  accused,  because  he  had 
been  previously  tried  by  a  court-martial  on  the  same 
charge,  and  that  a  new  trial  was  forbidden  by  the  87th 
article  of  war.  The  question  then  arose  as  to  the  power 
of  the  President  to  grant  a  new  trial,  and  the  attorney- 
general,  Mr.  Wirt,  gave  an  elaborate  and  conclusive 
opinion  thereon. 

"It  is  very  apparent  that  the  whole  of  article  87  is 
designed  for  the  henefit  of  the  j^arty  accused,  not  for  his 
prejudice.  The  President  of  the  United  States  has  the 
power  to  order  a  ne^V'  trial  for  the  benefit  of  the  prison- 
er. The  sentence  of  a  court-martial  in  case  of  death  or 
dismission,  is  not  perfected  until  it  shall  have  received 
the  approbation  of  the  President.  His  ai)pr(>bation  is 
necessary  to  consummate  the  measure,  and  his  disa])])roval 
annihilates  the  sentence;  the  case  stands  as  if  there  had 
been  no  trial,  and  is  just  as  open  to  an  order  for  a 
court-martial,  as  it  was  in  the  fii'st  instance.  "  *  * 
The  plea  is  his  (the  prisoner's)  7;/'^v^7<?y(?,  which  he  may 
either  use  or  waive  at  his  pleasure;  and  if  he  docs  not 
use  it,  however  the  fact  may  be,  the  court  will  not  take 
notice  of  it  so  as  to  bar  the  trial.  In  the  present  in- 
stance, the  pi-isoner  expressly  waived  the  plea  and  in- 


150  MILITARY    LAW    AND    COURTS-MARTIAL. 

sisted  upon  liis  trial.     The  previous  trial,  therefore,  was 
not  in  issue  before  the  coui't."* 

ITIutilatcd  Court  assembled  for  Revision.  WTien  a 
court-martial  has  lawfully  reassem1)le(I  for  revision, 
some  of  its  members  being  absent,  but  a  legal  quorum 
of  the  court  present,  the  question  has  arisen,  ^vhether  it 
was  com23etent  to  go  on  as  the  same  court  which  has 
passed  the  original  sentence,  and  to  revise  or  modify  it 
on  a  reconsideration  of  the  record  ?  The  opinion  of 
Attorney-General  Gushing  on  this  point  is,  that  the  ab- 
sence of  the  members  at  the  reassembling  of  the  court, 
did  not  impair  its  jurisdiction,  or  otherwise  injuriously 
affect  the  legality  of  its  action ;  and  that  it  still  remained 
the  same  continuous  and  competent  court  as  when  it 
first  asseml)led  under  the  orders  of  the  department.  He 
grounds  this  opinion  on  the  analogy  that  exists  between 
courts-martial  and  juries,  the  appointing  j^ower  having 
something  of  the  same  relation  to  the  former,  that  the 
judge  at  nisi  prius  has  to  the  latter;  that  the  grand 
jury  has  always  consisted  of  members  changeable  in 
numbers  and  personality  within  certain  limits,  acting 
only  l:)y  a  quorum  vote,  without  necessary  unanimity ; 
and  that  it  is  no  inherent  necessity  which  forbids  a 
traverse  jury  to  undergo  personal  change  in  the  course 
of  a  trial,  but  merely  the  arljitrary  discretion  of  the  law- 
making power.  He  also  refers  to  the  fact  that  no  law 
or  regulation  requires  all  the  members  of  the  court,  who 
participated  in  the  original  proceedings,  to  continue 
present  until  the  time  of  their  conclusion ;  and  that  the 
members  who  reassembled  would  have  been  competent 
to  try  the  case  when  originally  submitted.f     However 

*  Opinions,  Sept.  14tli.  1818.  f  Opinions,  July  12th,  1855. 


REVISIOX    AND    CONFIRMATION.  151 

just  and  proper  this  may  l)e  in  law  and  equity,  revision 
by  a  mutilated  court  should  not  1)e  encouraged  in  prac- 
tice. Taking  an  extreme  case;  an  original  court  of 
thirteen  members  might  be  reduced  by  unavoidable 
circumstances  to  the  minimum  of  five  for  revision,  and 
the  action  of  this  minority  might  l)y  its  revised  decision 
annul  and  u})set  the  matui'ed  and  decided  action  of  the 
majority.  Such  a  case  would  carry  Avith  it  so  palpable 
an  aj^j^earance  of  injustice,  as  to  effect  more  detriment  to 
the  service  ])y  its  silent  oj^eration,  than  would  be  com- 
pensated by  the  individual  justice  it  might  have  adminis- 
tered. Whatever  tends,  in  the  slightest  degree,  to  cast  a 
sha(lo\v  uj)on  the  unsullied  purity  of  our  military  tribu- 
nals, should  l)e  avoided  Avitli  all  the  care  commensurate 
with  the  strict  and  impartial  administration  of  justice. 

Conririnatioii.  The  duties  of  the  reviemng  officer 
are  distinctly  set  forth  in  the  Goth  article  of  war,  and 
accordingly  no  sentence  can  be  carried  into  execution 
until  after  "the  whole  proceedings"  shall  have  l)een  ])y 
him  "  conjirmedy  This  con&mation  is  usually  affixed, 
with  his  signature,  to  the  proceedings,  and  the  decision 
is  published  in  orders.  Should  the  proceedings  of  the 
court  be  "  dUa/pproved^''  by  him,  he  may  reconvene  the 
court  for  revision,  or  release  the  prisoner  from  arrest,  and 
order  him  to  duty.  Minor  errors  would  be  noticed,  and 
might  modify  the  action  of  the  reviewing  authority,  but 
not  necessarily  lead  to  a  disapproval  of  the  entire  record. 
If  the  sentence  be  too  severe,  or,  on  the  other  hand,  too 
inadequate,  for  the  offence  of  Avhich  the  accused  stands 
convicted,  the  same  authority  might  use  his  discretion 
in  either  sending  the  proceedings  back  for  revisal,  miti- 
gating, remitting,  or  confirming  the  sentence. 


152  3IILITAKY    LAW    A^^D    COURTS-MARTIAL. 


When,  upon  re\'ision,  courts-martial  adhere  to  the 
judgment  first  j)ronounced,  this  adherence  is  accompa- 
nied by  a  statement  of  their  reasons  for  so  doing.  In 
such  cases,  the  reviewing  authority  may  confirm  the 
proceedings,  should  nothing  illegal  therein  prevent,  that 
the  convict  may  not  go  impunished ;  or  may  remit,  or 
mitigate  the  same,  at  his  discretion. 

Provocation^  according  to  its  kind  and  degree,  and 
the  nature  of  the  act  committed  in  consequence  of  it, 
may  justify  or  excuse  that  act.  Extenuating  circum- 
stances may  be  proj^erly  considered  by  the  approving 
authority,  and  indeed,  it  is  the  right  of  the  accused  that 
all  the  circumstances  of  his  case  should  be  re^newed  by 
that  authority  which  decides  finally  upon  it. 

initigation  of  Puiiiisiiincut.  By  the  89th  article  of 
war,  "  every  ofiieer  authorized  to  order  a  general  coiu't- 
martial,  shall  have  power  to  pardon  or  mitigate  any 
punishment  ordered  by  such  coui't,  except  the  sentence 
of  death,  or  of  cashiering  an  officer ;  which,  in  the  cases 
where  he  has  authority  (by  article  05)  to  carry  them 
into  execution,  he  may  suspend,  until  the  pleasure  of 
the  President  of  United  States  can  be  known ;  which 
suspension,  together  with  copies  of  the  proceedings  of 
the  court-martial,  the  said  officer  shall  immediately 
transmit  to  the  President  for  his  determination.  And 
the  colonel  or  commanding  officer  of  the  regiment  or 
garrison,  where  any  regimental  or  gamson  court -martial 
shall  be  held,  may  pardon  or  mitigate  any  punishment 
ordered  by  such  court  to  be  inflicted."* 

The  power  is  hereby  expressly  given  to  every  officer, 
authorized  to  order  a  general  court-martial,  to  pardon 

*  See  act  approved  Dec.  2-lth,  1S61. 


i 


EEVISION    AND    CONFIEMATION.  153 

and  mitigate  any  punishment  ordered  by  such  court, 
except  the  sentence  of  death,  or  of  cashiering  of  an  offi- 
'jer;  these  can  only  be  pardoned  or  mitigated  l)y  the 
President  of  the  United  States. 

In  the  case  of  Major  Whistler,  the  following  opinion 
was  given  by  the  attorney-general:  "In  those  cases 
which,  l)y  the  rules  and  articles  of  war,  are  required  to 
be  submitted  to  him,  the  whole  proceedings  are  required 
to  be  transmitted  to  the  secretary  of  war,  to  be  laid  be- 
fore the  President  '  for  his  confirmation  or  disapproval, 
and  orders  in  the  case.'  The  terms  indicate  an  unlimit- 
ed discretion ;  and  when  it  is  considered,  that  he  is,  by 
the  constitution,  the  depositary  of  the  pardoning  power 
— that  this  is  coextensive  with  every  species  of  punish- 
ment, except  only  in  cases  of  impeachment — it  cannot,  I 
think,  ])e  doubted  that  he  has  authority  to  mitigate  as 
well  as  to  confirm  or  I'eject  the  sentence  of  a  general 
court-martial,  in  the  exercise  of  the  supervisory  power 
committed  to  him  by  the  act  for  establishing  the  rules 
and  articles,  for  the  government  of  the  armies  of  the 
United  States.  It  would  be  sinsjular  if,  in  the  cases 
which  are  intrusted  to  the  supervision  of  a  subordinate 
officer  (see  89th  article  of  war),  a  power  should  be 
given  to  him  over  the  sentence  of  a  court-martial,  which 
is  denied  to  the  commander-in-chief,  in  those  cases  which 
are  referred  to  him."* 

The  power  to  pardon  all  offences  against  the  United 
States,  except  in  cases  of  impeachment,  is  given  to  the 
President,  by  the  constitution;  and  his  constitutional 
power  to  grant  a  conditional  pardon,  ofiering  to  com- 
mute the  sentence  of  deatli  to  that  of  im2)risonment  for 

*  Opinions,  Nov.  3d,  1829. 


154  MILITARY    LAW    AND    COUETS-MAETIAL. 

life,  is  affirmed  by  the  Supreme  Coui't  *  And  Attorney- 
General  Crittenden,  in  the  case  of  an  Indian  sentenced 
to  be  hung  for  murder,  says:  "The  general  power  of 
pardoning  conferred  by  the  constitution  upon  the  Presi- 
dent, includes  the  power  of  pardoning  conditionally,  or 
of  commuting  to  a  milder  punishment  that  which  has 
been  adjudged  against  the  offender.  The  commutation 
of  the  punishment  is  but  a  conditional  pardon;  and 
that  the  President  may  grant  such  a  conditional  pardon 
has  been  always  recognized  and  decided."f 

The  question,  then,  whicli  has  arisen  denying  to  the 
President  the  power  of  commuting^  because  under  the 
above-quoted  article  of  war,  the  word  "  mitigate  "  is  only 
used,  which  does  not  include  ^'- commute^'^  necessarily 
falls  to  the  ground,  as  the  SujM'eme  Court,  the  sole  judge 
of  the  constitutionality  of  laws  and  acts,  has  affirmed  tTiis 
as  flowing  directly  from  the  pardoning  power,  and  what 
is  granted  by,  or  implied  in,  the  constitution  cannot  be 
annulled  by  express  laws,  much  less  by  mere  inference, 
as  abovCo 

To  mitigate  a  punishment,  is  to  make  it  less  in  degree, 
preserving  the  same  species.  To  commute^  is  to  substi- 
tute a  punishment  of  a  different  species.  There  are 
only  two  kinds  of  punishments  recognized  and  author- 
ized by  our  military  laws,  which  admit  of  no  degrees  of 
severity : — they  are,  death  and  cashiering,  or  dismission ; 
but  when  such  a  sentence  is  adjudged  by  a  court-martial, 
its  pardon  or  mitigation  is  placed,  exclusively,  in  the 
hands  of  the  President.  All  other  sentences  can  be  par- 
doned or  mitigated  by  the  officer  ordering  the  court,  but 

*  Ex  parte,  Wells,  18  Howard  U.  S.,  p.  307. 

\  Opinions,  May  10th,  1851.     (U.  S.  vs.  Wilson,  7  Peters,  p.  158.) 


EEVISION    AND    CONFIRM ATION.  155 

admitting  as  tliey  do  of  different  degrees  of  severity, 
tliere  arises  no  difficulty  in  regard  to  their  mitigation,  as 
this  power  can  be  exercised  by  lessening  tlie  quantity 
without  changing  the  species. 

But  the  po^ver  to  co))i)nute  is  held  to  be  included  in  that 
of  mitigation.  In  the  case  of  private  William  Barnsman, 
of  the  marine  corps,  who  was  sentenced  to  suifer  death, 
the  question,  whether  the  President  coidd  change  that 
sentence  into  one  of  ^'  service  and  restraint  for  the  space  of 
one  year,  etc.,"  w^as  sul^mitted  to  Mr.  Wirt,  attorney-gen- 
eral. "  The  power  oi ixirdoning  the  offence^  does  not,  in 
my  opinion,  include  the  power  of  changing  the  punish- 
ment, but  the  2)ower  to  mitigate  cannot  be  fairly  under- 
stood in  any  other  sense  than  as  meaning  a  power  to  sub- 
stitute a  milder  pimishment  in  the  place  of  that  decreed 
1  »y  the  court-martial.  The  only  doubt  that  occurs  to  me 
as  possible  in  regard  to  this  construction,  is,  whether  the 
power  of  mitigating  a  punishment  includes  the  power 
of  changing  its  species ;  whether  it  means  any  thing 
more  than  lessening  the  quantity,  preserving  neverthe- 
less, the  species  of  the ijunlshinent.  A  sentence  of  death 
cannot  be  mitigated  in  any  other  way  than  by  changing 
the  i)unishment.  To  deny  him  the  exercise  of  this 
})ower  in  such  a  case,  and  to  throw  him  on  his  own 
power  of  entii'e  pardon,  would  be  to  compel  him  to  ex- 
tend the  greatest  mercy  to  those  who  had  deserved  it 
least ;  for  w^hile  it  is  true  that  sentences  of  death  are 
those  which  appeal  most  strongly  to  mercy,  because 
they  deal  in  blood,  it  is  no  less  true  that  they  are  pre- 
cisely those  which  are  least  worthy  of  an  entire  pardon, 
l)ecause  they  are  pronounced  only  in  cases  of  enormity. 
In  other  words,  they  are  those  in  which  the  power  of 


156  MILITARY    LAW    AND    C0URTS-:MAETIAL. 

mitigation  applies  with  peculiar  propriety.  I  think, 
therefore,  that  the  President  has  the  right  to  mitigate 
the  sentence  of  death ;  and  that  every  argument  for  the 
exercise  of  the  power  in  inferior  cases,  applies  a  fortiori 
to  such  a  sentence.  And  since  a  sentence  of  death  can 
be  mitigated  only  by  changing  it,  my  opinion  is,  that 
the  President  has  the  power,  in  the  case  of  William 
Barnsman,  to  substitute  the  milder  punishment  which 
he  contemplates."* 

In  the  case  of  an  officer  of  the  na^-y  who  was  sen- 
tenced by  a  court-martial  to  be  dismissed  the  service, 
the  President's  power  to  mitigate  the  punishment,  is  up- 
held by  the  opinion  of  the  attorney-general.  "  In  any 
aspect  of  the  case,  I  cannot  doubt  the  power  of  the 
President  to  mitigate  a  sentence  of  dismission,  by  com- 
muting it  into  a  suspension  for  a  term  of  years  without 
pay.  A  dismission  is  a  perpetual  suspension  without 
pay,  and  the  limited  suspension  without  pay  is  the  in- 
ferior degree  of  the  same  punishment.  According  to 
the  strictest  authorities,  I  am  satisfied  that  limited  sus- 
pension, with  the  suspension  of  pay  and  emoluments,  is 
a  legal  mitigation  of  a  sentence  of  dismission  fi*om  the 
service."f 

In  a  subsequent  opinion,  the  following  is  the  language 
of  the  same  attorney-general,  Mr.  Mason :  "  When  an 
officer  is  brought  to  trial,  and  is  sentenced  to  be  pun- 
ished, the  executive  may  mitigate  the  severity  of  that 
punishment,  but  there  is  a  guide — the  discretion  is  a 
legal  discretion,  and  the  mitigation  must  not  be  accord- 
ing to  a  capricious  will,  but  must  havt-  the  sanction  of 
the  judgment  of  the  court.     It  must  inflict  a  part  of  the 

*  Opinions.  January  4tb,  1820.  f  Opinions,  September  18th,  1845. 


EE VISION    AND    CONFIRMATION.  157 

punishment  awarded  by  tlie  judgment  of  the  couii:,  with 
the  exception  of  those  cases  in  which  there  is  no  degree, 
as  where  the  whole  punishment  must  be  inflicted,  or  no 
part  of  it  can  be.  Such  is  the  case  with  a  sentence  of 
death."* 

In  the  case  of  Captain  Ramsay  of  the  Navy,  who  was, 
in  1S43,  sentenced  by  a  general  court-martial  "to  be 
suspended  ft-om  all  I'ank  and  command  in  the  navj  of 
the  United  States,  for  and  during  the  period  of  five 
years,"  the  President  ordered  that  the  sentence  be  "  com- 
muted to  suspension  for  six  months  without  iKiy^  In 
reviewing  the  case,  the  attorney-general  says,  that  "It 
does  not  appear  that  the  commutation  of  the  sentence 
was  made  at  Captain  R.'s  request;  or  that  the  con- 
dition was  accej^ted  by  him.  The  act  of  Congress 
has  made  a  suspension  of  pay  a  punishment  to  be  in- 
flicted, or  not,  in  a  single  class  of  cases,  at  the  discretion 
of  the  coui't.f  The  executive  has  no  power  while  an 
officer  retains  his  commission,  and  is  not  sentenced  by  a 
court-martial  to  that  effect,  to  take  from  him  the  pay 
which  the  law  gives  him.  I  am  constrained  to  the 
opinion,  therefore,  that  Captain  R.  is  entitled  to  pay, 
during  the  period  mentioned  in  the  4th  auditor's  let- 
ter, notwithstanding  the  terms  in  which  the  President 
commuted  his  sentence."  J 

The  weight  of  opinion  is,  therefore,  in  favor  of  the 
power  of  the  President  to  commute  under  the  authority 
given  by  law  to  mitigate;  provided  it  be  mitigation, 
and  add  nothing ;  and  as  this  has  also  been  affii'med  by 
the  Supreme  Com-t  as  constitutional,  and  as  flowing  from 

*  Opinions,  October  16tb,  1845.  f  Sec  Slth  article  of  war. 

X  Opinion,  October  IGtli,  1845. 


158  MILITARY    LAW    AND    COUETS-MAETIAL. 

the  pardoning  power,  the  question  is  set  at  rest  and  is 
no  longer  open  for  discussion. 

The  Sdth  artide  prohi])its  "every  officer"  from  par- 
doning or  mitigating  the  sentence  of  death  or  of  cashier- 
ing an  officer.  In  time  of  ivar  such  a  sentence  can  be 
carried  into  execution  by  the  officer  ordering  the  court- 
martial,  except  in  the  case  of  a  general  officer,*  Ijut  the 
power  of  pardon  and  mitigation  is  left  exclusively  to  the 
President. 

In  the  case  of  Lieutenant  Devlin  of  the  Marines,  on 
service  with  the  army  in  Mexico,  who  was  sentenced  by 
a  general  court-martial,  to  be  cashiered,  the  general-in- 
chief,  after  approving  the  sentence,  directed  that  it 
should  be  commuted  to  twelve  months'  suspension  from 
rank,  command,  and  emoluments;  without  submitting 
the  proceedings  and  his  orders  thereon,  for  the  action  of 
the  President  of  the  United  States.  The  question  as  to 
the  legality  of  the  order  of  the  general-in-ehief,  com- 
muting the  punishment,  was  submitted  to  the  attorney- 
general. 

"  By  the  65th  article,  the  general-in-chief  had  the  full 
power  to  confirm  the  sentence  of  cashiering  against  Lieu- 
tenant D.  But  he  had  no  power  whatever  to  pardon 
or  mitigate  the  sentence,  the  89th  article  expressly 
excepting  the  cashiering  of  an  officer  from  his  power  to 
pardon  or  mitigate.  All  the  authority  he  had  was,  to 
suspend  the  canying  the  sentence  into  execution  until 
the  pleasure  of  the  President  could  be  knowoi.  Tlie 
article  is  express,  that,  in  the  cases  where  the  general-in- 
chief  has  authority  to  carry  into  execution  such  a  sen- 
tence, to  wit,  in  time  of  war,  he  shall  not  pardon  or 

*  See  65th  article  of  war,  and  act  approved  Dec.  2-ith,  1861. 


REVISION    AND    CONFIRMATION.  159 

mitigate,  but  may  suspend  execution  and  make  report 
to  the  President."* 

Final  Action  on  the  Proceedings.  The  proceedings 
of  a  court-martial  having  been  finally  disposed  of  by  the 
officer  ordering  the  court  to  assemble,  or  the  command- 
ing officer  for  the  time  being,  are  not  liable  to  be  re- 
viewed by  any  other  authority  short  of  the  President  of 
the  United  States.  A  superior  military  commander  to 
the  officer  confirming  the  proceedings  may  suspend  the 
execution  of  the  sentence  when,  in  his  judgment,  it  is 
void  on  the  face  of  the  proceedings,  or  when  he  sees  a 
fit  case  for  executive  clemency.  But  such  militaiy  com- 
mander is  not  invested  by  law  with  power  to  annul  or 
pardon  the  sentence.  As  a  legal  judgment  it  so  stands 
till  vacated  in  due  course  of  law.  In  such  cases,  the 
record,  with  his  orders  prohibiting  the  execution  of  the 
sentence,  shall  be  transmitted  for  the  final  orders  of  the 
President.  This  salutary  check  on  the  action  of  the  re- 
viewing authority  is  made  practicable  by  the  regula- 
tions requiring  all  proceedings  of  the  inferior  courts  to 
be  transmitted  Avithout  delay  to  the  department  head- 
quarters; and  the  original  proceedings  of  all  general 
courts-martial  after  decision  thereon  of  the  reviemng 
autliorit}',  and  copies  of  all  orders  confirming,  or  disap- 
l^roving,  or  remitting  the  sentences  of  courts-martial,  to 
be  transmitted  to  the  judge  advocate  of  the  army  at  the 
War  Department.! 

There  is  no  court  in  which  an  appeal  can  be  taken 
against  the  sentence  of  a  court-martial,  or  in  which  it 
may  be  revised,  with  the  single  exception  of  the  right 
of  appeal  from  the  judgment  of  a  regimental  to  a  gen- 

*  Opmions,  September  20tli,  1853.  f  G.  R.,  p.  126. 


160  MILITAEY    LAW    AND    COUKTS-ilARTIAL. 

eral  court-martial,  as  provided  by  tlie  35tli  article  of 
war. 

Tlie  successor  to  an  officer  ordering  a  court-martial  is 
empowered  to  act  on  its  proceedings,  confirming  or  dis- 
approving them.  He  may  also  pardon  or  mitigate  a 
sentence  confirmed  by  Lis  predecessor,  but  cannot  re\^ew 
or  annul  liis  decision,  nor  arraign  its  propriety,  or  im- 
pugn the  motives  that  induced  it.  That  decision  is  final, 
and  closes  the  trial,  and  the  only  remedy  lies  in  the 
power  of  pardon  or  mitigation.  As  bearing  on  this 
point  we  quote  the  foUo^^ing :  "  The  office  and  powers  of 
the  President  are  perpetual  and  every  successor  has  all 
the  powers  which  his  predecessors  had  whilst  in  office. 
But  this  must  be  understood  of  matters  executory,  of 
things  to  be  done,  and  not  in  relation  to  matters  execut- 
ed, rightfully  and  legally  transacted.  A  decision  made 
and  executed  under  one  President,  is  not  liable  to  be 
reviewed  and  annulled  under  the  administration  of  an- 
other." 

Remission.  "WTiere  an  officer  is  suffering;  under  a 
sentence  of  suspension  from  rank  and  pay,  any  order 
for  duty  and  command  according  to  his  rank,  issued  by 
authority  competent  to  pardon,  is  a  remission  of  the  un- 
expired portion  of  the  sentence.  In  1851,  an  officer  of 
the  navy  was,  by  a  court-martial,  sentenced  to  be  dis- 
missed the  service,  which  sentence  was  mitigated,  by 
the  President,  to  suspension  from  service  and  pay,  for 
the  term  of  twelve  months.  During  said  term  of  sus- 
pension, he  was  ordered  by  the  secretary  of  the  nav^^ 
"  to  attend  as  a  witness  before  a  court  of  inquiry."  The 
lieutenant  claimed  this  as  a  constructive  pardon  of  the 
entii'e  sentence.     Mr.  Attorney- General  Gushing  denied 


EEVISION    AND    CONFIRMATION.  161 

this  claim,  but  stated  tliat  if  the  lieutenant  "  had  been 
ordered  on  duty  and  command  as  a  lieutenant,  that 
would  have  been  an  express  remission,  not  of  the  whole 
sentence,  but  of  the  unexecuted  residue  of  the  sen- 
tence."* 

Record  Preserved.  The  original  proceedings  and 
sentence  of  a  general  court-martial,  shall  be  carefully 
kept  and  preserved  in  the  office  of  the  secretary  of  war, 
to  the  end  that  the  persons  entitled  thereto  may  be 
enabled,  upon  application,  to  obtain  copies  thereof. 
The  party  tried  by  any  general  court-martial  shall,  upon 
demand  thereof,  made  by  himself,  or  by  any  person  or 
persons  in  his  behalf,  be  entitled  to  a  copy  of  the  sen- 
tence and  proceedings  of  such  court-martial.f 

In  this  place  it  will  be  well  to  notice  an  important 
question,  which  has  been  largely  discussed  by  De  Hart 
in  his  work  on  courts-martial,  and  whose  opinions  find 
able  advocacy  in  the  views  of  the  late  general-in-chief 
of  the  army.  The  question  is.  Has  the  President  of  the 
United  States  the  right  to  Dismss/rc»w  the  service^  with- 
out TRIAL,  A  coiiMissiONED  OFFICER  of  the  army  or  navy. 
For  arjTuments  in  denial  of  this  rioht,  we  refer  to  the 
work  of  De  Hart,  and  will  confine  ourselves  to  extracts 
from  the  opinions  of  high  legal  authority,  delivered 
since  its  publication,  in  support  of  that  right. 

"  The  authority  of  the  President  in  this  respect  (the 
i-emoval  of  civil  officers),  was  sustained  in  the  debate  of 
1789  upon  the  ground  that  'it  resulted  from  the  nature 
of  the  power,  and  the  convenience  and  even  necessity  of 
its  exercise ;  that  it  was  clearly  in  its  nature  a  part  of 
the  executive  power,  and  was  indispensable  for  a  due 

*  Opimons,  September  12th,  185-4.  f  90th  article  of  war. 

11 


162  MILITARY    LAW    AND    COURTS-MAKTIAL. 

execution  of  the  laws,  and  a  regular  administration  of 
tlie  puljlic  affairs.'  This  doctrine  has  since  been  ex- 
pressly sanctioned  by  the  unanimous  sanction  of  the 
Supreme  Court ;  j^lacing  it,  however,  more  distinctly  on 
the  ground  that,  as  a  necessaiy  rule,  '  the  power  of  re- 
moval is  an  incident  of  the  j^ower  of  appointment.'  If 
there  is  any  foundation  in  the  constitution  for  any  dis- 
tinction in  the  tenure  of  civil  and  military  office,  it  is 
remarkaljle  that  it  should  have  been  overlooked  in  the 
searching  and  comprehensive  discussion  of  1789.  On 
the  contrary,  it  was  maintained  that  the  power  of  re- 
moval extended  to  every  officer  of  the  government 
except  the  judiciary."* 

And  Attorney- General  Gushing,  December  10th, 
1856,  says:  "As  a  question  of  law,  and  upon  mere  legal 
authorities,  it  must  be  taken  as  a  point  adjudged.  So 
it  is  in  the  practice  of  the  government.  The  power  has 
l)een  exercised  in  many  cases  with  approbation,  express 
or  implied,  of  the  Senate,  and  without  challenge  by  any 
legislative  act  of  Congress.  In  regard  to  officers  of  the 
army  and  navy,  there  is  no  specific  provision  in  the  con- 
stitution, of  any  sort.  In  regard  to  the  appointment  of 
the  officers  of  the  army  and  navy  there  is  no  general  act 
of  Congress.  It  stands,  of  course,  upon  the  constitu- 
tional provision,  that  the  President  '  shall  nominate  and, 
by  and  with  the  advice  and  consent  of  the  Senate,  shall 
appoint  ambassadors,  other  public  ministers  and  con- 
suls, judges  of  the  Supreme  Court,  and  all  other  officers 
of  the  United  States,  w^hose  appointments  are  not  herein 
otherwise  pro^dded  for,  and  which  shall  be  established 
by  law.' 

*  Opinion  Attornc,v-Gencral  Clifford,  July  Uth,  1847. 


KEVISIOTs^    AND    CONFIRMATION.  163 

"  Now,  in  regard  to  civil  officers,  tlie  construction  of 
tlie  constitution  was  fixed,  as  all  admit,  past  change,  on 
occasion  of  tlie  debates  in  the  first  Congress.  And  the 
established  practice  of  the  government  on  this  point  has 
l)assed  into  the  state  of  equally  estal)lislied  constitution- 
al doctrine.  The  power  to  remove  is  inherent  in  the 
executive  power  to  nominate. 

"  It  is  true  the  constitution  contemplates  the  organiza- 
tion by  Congress  of  a  special  forum  for  the  trial  of  mili- 
tary officers ;  and  officers  of  the  army  and  na^^"  may  be 
dismissed  l^y  sentence  of  courts-martial.  But  that  sen- 
tence must  be  aj)proved  by  the  President,  in  order  to 
take  effect ;  and  even  after  such  approval  the  party 
ma}'  be  pardoned  by  the  President.  In  these  particu- 
lars the  executive  power  of  appointment  and  removal 
continues  to  be  recognized  by  implication.  It  is  not 
otherwise  with  civil  officers.  They  are  all  subject  to 
trial  by  a  special  forum,  the  Senate  of  the  United  States, 
whose  judgment  extends,  by  expression,  not  only  to  re- 
moval from  office,  but  also  to  future  disqualification, 
and  is  beyond  the  power  of  pardon.  Surely,  if  the 
existence  of  a  special  statute  forum  for  military  officers 
be  objection  to  the  power  of  removal  by  the  President 
in  their  case,  still  more  so  is  the  existence  of  the  special 
constitutional  forum  in  the  case  of  civil  officers. 

"  There  are  considerations  of  expediency,  which  have 
contributed  to  give  greater  practical  permanency  to  mil- 
itary than  to  civil  commissions.  But  these  considera- 
tions cannot  operate  to  change  the  signification  of  the 
constitution." 

By  the  Wth  article  of  wai\  it  is  enacted,  that  no  dis- 
charge shall  be  given  to  a  non-commissioned  officer  or 


164  MILITAEY   LAW    AND    C0UETS-3IAETIAL. 

soldier  before  his  term  of  serHce  has  expired,  but  by 
order  of  the  President,  the  secretary  of  war,  the  com- 
manding officer  of  a  department,  or  the  sentence  of  a 
general  court-martial ;  nor  shall  a  commissioned  officer 
be  discharged  the  service  but  by  order  of  the  President 
of  the  United  States,  or  by  sentence  of  a  general  court- 
martial. 

It  is  certain  that  "  hy  order  of  the  President^''  applies 
as  strictly  to  commissioned  officers,  as  to  non-commission- 
ed officers  and  soldiers  within  the  term  of  theu*  enlist- 
ment. And  yet,  the  constant  practice  of  the  army, 
sanctioned  by  regulation,  is,  to  dismiss  soldiers  from  the 
service  with  a  "  discharge  in  wiiting"  on  the  application 
of  their  commanders,  and  without  trial.  As  no  excep- 
tion has  ever  been  taken  to  such  procedure,  under  this 
article,  the  conclusion  seems  irresistible,  that,  under  this 
same  article,  a  commissioned  officer  may  be  dismissed 
or  "  discharged"  by  order  of  the  President,  and  ^^-ithout 
a  trial. 

Much  might  be  said  on  the  ground  of  ex[:)ediency,  in 
opposition  to  the  rule  and  practice  in  this  regard,  but 
we  will  only  remark,  that  the  power  of  the  President  to 
remove  officers  from  the  army  at  his  pleasure,  might 
some  day  prove  of  greater  danger  to  the  liberties  of  the 
people,  than  the  simple  fact  of  keeping  up  a  standing 
army.  The  right  of  appointing  to  office  during  the  re- 
cess of  the  Senate,  said  appointments  to  hold  until  the 
end  of  the  next  session  of  Congress,  gives  to  an  unsci-u- 
pulous  executive  a  fearful  power.  The  selection  of  po- 
litical tools,  to  hold  such  i:>ositions  for  many  months, 
would  suffice,  under  cii'cumstances  of  great  extremity, 
to  work  out  direst  evils  to  the  republic.     Such  a  power 


KEVISION    AND    CONFIR:\[ATrON.  165 

over  an  army  cannot  be  too  well  guarded  l)y  all  the 
checks  which  an  enlightened  judgment  can  impose,  and 
as  an  evil,  is  more  to  be  dreaded  than  the  perpetual 
tenure  of  officers'  commissions,  subject  as  they  are  to 
the  close  supervision  of  military  tribunals. 


CHAPTER    XIY. 

EXECUTION  OF  SENTENCE. 

Mode.  With  regard  to  tlie  mode  of  carrjnng  the  sen- 
tence into  execution,  it  may  be  observed,  that  as  one 
great  end  of  punishment  is  the  prevention  of  crime  l)y 
example,  it  should  be  rendered,  in  this  respect,  as  exten- 
sively useful  as  possible,  by  the  publicity  whicli  attends 
its  execution.  Capital  punishment,  for  instance,  sliould 
be  carried  into  effect  in  the  presence  of  all  the  troops, 
or  of  such  portion  of  the  command  as  the  convenience 
of  the  service  may  dictate. 

By  Shooting.  In  cases  of  capital  punishment  by  shoot- 
ing, great  ceremony  is  ordinarily  observed.  Tlie  troops, 
to  witness  the  execution,  are  formed  on  three  sides  of  a 
square,  each  side  formed  in  two  lines,  with  an  interval 
between  the  lines  of  twenty  paces.  The  execution paity 
consists  of  ten  or  twelve  men  and  a  sergeant,  under  the 
orders  of  the  provost-marshal.  Tlie  pieces  will  be  load- 
ed under  the  direction  of  the  latter,  out  of  sight  of  the 
firing  party.  He  will  see  that  one  piece  is  loaded  with 
a  blank  cartridge,  and  the  remainder  with  ball  cart- 
ridges, in  the  most  careful  manner.  The  procession  ^vill 
api)roach  the  line  fi*om  the  right,  in  the  following  or- 
der, viz. : 

1.  Provost-marshal. 


EXECUTION    OF    SENTENCE.  167 

2.  Band  of  tlie  prisoner's  regiment,  playing  a  funeral 
march. 

3.  Firing  party. 

4.  Coffin,  borne  by  four  men. 

5.  Prisoner  and  Cliaj)lain. 
C.  Escort. 

When  the  procession  shall  have  reached  the  right  of 
the  divison,  the  front  battalions  shall  face  to  the  rear, 
and  the  procession  will  pass  between  the  lines  of  the 
battalions  around  to  the  left  of  the  division.  It  will 
halt  and  form,  facing  outward,  on  the  vacant  side  of  the 
square.  During  its  passage  the  bands  of  the  regiments 
which  it  passes  shall  in  succession  j^lay  funeral  marches, 
and  after  its  passage  each  regiment  in  the  front  line 
will,  in  succession,  face  to  the  front. 

On  arriving  at  the  open  space,  the  music  ceases;  the 
prisoner  is  placed  on  the  ftital  spot  marked  Ijy  his  coffin; 
the  charge,  finding  and  sentence  of  the  court-martial,  and 
the  order  for  his  execution  are  read  to  the  culprit,  and 
also,  at  the  same  time  to  each  regiment  by  its  adjutant; 
the  chaplain  having  engaged  in  prayer  with  the  con- 
demned, retires;  the  execution  party  forms  at  six  or 
eight  paces  from  the  prisoner,  and  iticeives  the  signal 
fi-om  the  provost-marshal.  If  its  fire  does  not  prove 
instantaneously  effectual,  it  is  the  duty  of  the  provost- 
marshal  to  complete  the  sentence  with  his  pistol.  Some- 
times the  fire  of  a  file  or  two  is  reserved,  to  be  prepared 
for  this  i)ainful  occurrence.  After  the  execution,  the 
troops  break  into  column  by  the  right,  and  move  past 
the  corpse  in  slow  time. 

By  Hanging.  Death  by  hanging  is  mtnessed  by  the 
troops  formed  in  s(|uare  on  the  gallows  as  a  centre. 


168  MILITARY   LAW    AND    COUETS-MARTIAL. 

The  executioner  performs  his  office  under  the  direction 
of  the  provost-marshal.  The  troops  march  oft'  tlie 
ground  in  slow  time;  the  provost-marshal  with  the 
escort  remaining  until  the  body  is  taken  down. 

Drtimuied  out.  Soldiers  are  sometimes  ordered  to  be 
discharged  with  ignominy,  in  pursuance  of  the  sentence 
of  a  coui't-martial,  and  the  sentence  is  executed  as  fol- 
lows :  The  troops  being  assembled,  and  the  man  about 
to  be  discharged  brought  forward  in  charge  of  a  guard, 
the  several  crimes  and  irre2:ularities  of  which  he  has 
been  found  guilty  are  recapitulated,  and  the  order  for 
his  discharge  is  read,  in  which  is  noticed  his  ignominious 
conduct.  The  buttons,  facings,  and  any  other  distinc- 
tions are  then  stripped  from  his  clothing,  and  he  is  tnim- 
peted  or  di'ummed  out  with  the  "  rogue's  march," 
through  the  barracks  or  camp  of  his  corps. 

Corporeal  punishment  is  used,  in  the  articles  of  war, 
to  include  confinements,  ball,  and  chain,  &c.,  to  which 
an  oftender  is  subjected  in  his  person. 

A  commanding  officer  is  not  justified  in  releasing  sol- 
diers under  sentence  of  corporeal  punishment,  permit- 
ting them  to  do  duty  in  presence  of  the  enemy,  or  at 
other  times,  and  afterward  inflicting  the  punishment. 
Such  a  release  is  a  remission  of  the  unexpired  portion 
of  the  sentence. ' 

When  a  soldier  is  sentenced  to  close  confinement  in 
the  cells,  if  sickness  should  require  him  to  be  removed 
to  the  hospital,  he  would,  upon  recovery  of  his  health, 
be  returned  to  imprisonment  for  the  remainder  of  his 
sentence,  but  the  time  of  his  being  in  hospital  must  be 
counted  a  part  of  his  imprisonment.  When  in  hospital, 
be  is  deemed  a  prisoner. 


I 


EXECUTION    OF    SENTENCE.  169 

Place.  Courts-martial  do  not  notice  tlie  ijlace  of  im- 
prisonment, in  tlieir  sentence.  This  is  left  to  tlie  com- 
manding officer  under  whose  control  the  sentence  is  to 
be  executed,  and  therefore  the  place  of  imprisonment 
may  be  changed  should  the  removal  of  the  garrison,  or 
other  cause,  render  it  necessary.  The  time  taken  to 
effect  'the  change  would  be  counted  in  cases  of  ordinary 
confinement,  but  where  confinement,  either  solitary,  or 
on  bread  and  water  diet,  is  the  sentence,  the  prescribed 
number  of  days  must  be  fulfilled. 

Time.  In  calculating  the  period  of  imprisonment, 
the  day  on  which  the  sentence  commences,  and  that  on 
which  the  prisoner  is  to  be  released,  are  both  to  be 
counted;  and  it  may  also  be  mentioned,  that  in  all  cases, 
unless  calendar  months  are  specified,  lunar  months  of 
twenty-eight  days  are  always  to  be  understood. 


CHAPTEE    XY. 

EEDRESSmG  WRONGS,  AND  APPEALS. 

ProtectioM  to  Inferiors.  The  articles  of  war  contain 
fall  authority  for  protecting  the  rights  and  interests  of 
inferiors,  by  giving  to  all  officers  and  soldiers  the  right 
©f  appeal,  and  requiring  superiors,  in  positive  and  un- 
equivocal terms,  to  follow  certain  prescribed  modes  for 
the  doing  justice  to  the  appellant.  While  placing  in 
the  hands  of  the  inferior  the  right  to  demand  redress 
and  to  force  a  superior  to  act  upon  his  complaint,  the 
laws  also  give  the  superior  an  opportunity  to  redress 
the  wrong,  of  his  own  motion  and  by  his  o"\vn  act.  In 
the  case  of  a  soldier  it  requires,  without  qualification  or 
condition,  a  regimental  court-martial  to  be  summoned 
upon  complaint  being  made,  and  with  the  reserved  and 
absolute  right  to  appeal  to  a  general  court-martial.  In 
the  case  of  wrongs,  we  thus  see  a  palpable  i)reference 
given  to  soldiers,  by  making  an  investigation  immediately 
follow  the  complaint  in  the  first  instance,  wliile  with  offi- 
cers, an  examination  is  only  required  after  a  refusal  to 
grant  redress,  and  ui:)on  an  appeal  from  such  refusal. 

Officers.  The  34fA  a?'ticle  of  loar  enacts,  that  "  If 
any  officer  shall  think  himself  wronged  l^y  his  colonel, 
or  the  commanding  officer  of  the  regiment,  and  shall, 
upon  due  application  being  made  to  him,  be  refused  re- 
dress, he  may  complain  to  the  general  commanding  in 


EEDKESSING    WEONGS,    AND    APPEALS.  171 

the  state  or  territory  where  such  regiment  shall  be  sta- 
tioned, in  order  to  obtain  justice ;  who  is  hereby  re- 
quired to  examine  into  said  complaint,  and  take  proper 
measures  for  redressing  the  wrong  complained  of,  and 
transmit,  as  soon  as  possible,  to  the  Department  of  War, 
a  true  state  of  such  com])laint,  ^vith  the  proceedings  had 
thereon." 

This  only  refers  to  a  wrong  supposed  to  have  been 
done  by  the  colonel  or  commanding  officer  of  the  regi- 
ment, but  the  custom  of  service  has  extended  its  appli- 
cation to  all  wrongs  implicating  any  superior  officer,  as 
the  statute,  being  remedial  and  not  penal,  must  receive 
an  equitable  and  liberal  interpretation,  so  as  to  attain 
most  effectually  the  end  in  view,  and  prevent  a  failure 
of  the  remedy  intended. 

Following,  however,  the  letter  of  the  law,  the  aggriev- 
ed officer  must  first  make  due  application  for  redress,  to 
the  colonel  or  commanding  officer  of  the  regiment. 
This  must  be  made  in  writing,  and  the  supposed  aggres- 
sor allowed  reasonable  time  to  act  upon  the  apj^lication 
by  redressing  the  grievance,  or  returning  the  complaint 
with  his  refusal.  Should  he  "  be  refused  redress"  either 
in  express  terms,  or  by  such  a  neglect  of  the  application 
as  shall  constructively  amount  to  a  denial  of  justice,  he 
may  then  complain  to  the  general  commanding  in  the 
state  or  territory.  This  complaint  must  pass  through 
the  hands  of  the  colonel,  lie  being  an  intermediate  com- 
mander, who  has  thus  a  second  opportunity  of  acting 
upon  it,  and  must  1)e  identical  with  the  ap})lication  sub- 
mitted in  the  first  instance.  The  general  is  required  to 
examine  into  the  complaint,  and  take  proper  measures 
for  redressing  the  wroni:,^,  and  no  discretion  is  left  him 


172  MILITAKY    LAW    AND    COURTS-IIAKTIAL. 

in  this  regard,  and  in  transmitting  all  proceedings  liad 
thereon,  to  the  War  Department.  But  if  the  charge 
laid  be  incapable  of  proof,  or  the  grievance  stated  do  not 
amount  to  a  crime  of  militar}^  cognizance,  it  is  usual  to 
return  the  accusatory  complaint  to  the  party  making  it, 
mth  an  admonition,  or  advice,  that  it  be  withdrawn. 
Should,  however,  the  comj^lainant  insist  that  the  state- 
ment of  his  grievances  be  brought  to  the  notice  of  the 
department  of  war,  the  general  is  bound  to  forward  it. 
Even  his  peremptory  refusal  to  transmit  it  would  not  be 
prejudicial  to  the  comj^lainant,  as  the  latter  has  the 
right,  in  that  case,  to  addi^ess  himself  direct  to  the  War 
Department  through  the  adjutant-general's  office. 

IVoii-Coinmi§sioiicd  Officers  and  Soldiers.  The  Soth 
article  of  loar  enacts,  that  "  If  any  inferior  officer  or  sol- 
dier shall  think  himself  wronged  by  his  captain  or  other 
officer,  he  is  to  complain  thereof  to  the  commanding  offi- 
cer of  the  regiment,  who  is  hereby  requii'ed  to  summon 
a  regimental  court-martial,  for  the  doing  justice  to  the 
complainant,  from  which  regimental  court-martial  either 
party  may,  if  he  thinks  himself  still  aggrieved,  appeal 
to  a  general  court-martial.  But  if,  upon  a  second  hear- 
ing, the  appeal  shall  appear  vexatious  and  groundless, 
the  person  so  appealing  shall  be  punished  at  the  discre- 
tion of  the  said  court-martial." 

Two  questions  present  themselves :  What  "  lorongs''' 
are  referred  to  ?  and,  what  is  meant  by  "  his  captain  or 
other  officer  V 

This  article  was  originally  adopted  from  the  British 
article  of  war,  by  the  revolutionar}^  government,  on  the 
20tli  of  September,  1*776,  and  was  continued  in  force 
under  the  constitution  until  repealed  and  supj^lied  by  the 


REDRESSING    WRONGS,    AND    APPEALS.  lT3 

act  of  April  lOtli,  1806.  Originally  it  read,  "his  cap- 
tain or  other  officer  commanding  the  troop,  or  company 
to  which  he  belongs,"  and  the  evident  intention  of  the 
cliange  to  "  his  captain,  or  other  officer,"  was  to  extend 
the  effect  of  the  article  to  all  officers  whatsoever.  Other- 
wise, how  can  we  reconcile  the  suppression  of  the  limit- 
ation ^vith  the  remedial  2:>urposes  of  the  article.  Its 
object  being  remedial,  the  law  is  intended  to  cover,  with 
its  j^rotection,  all  cases  which  might  by  possibility  oc- 
cur, and  no  limitation  is  placed  to  its  ]3ower  that  the 
ri2:hts  of  the  soldier  mis-ht  be  held  subservient  to  his 
own  will,  in  every  contingency.  No  evil,  but  much  good, 
must  of  necessity  be  the  oljvious  result,  and  there  can  be 
no  reason  why  the  most  liberal  interpretation  should 
not  be  given  it,  if  there  be  any  doul)t  as  to  the  extent 
of  its  operation.  The  British  article  has  ahvays  been, 
and  is  still,  expressly  limited  to  cases  arising  l^etween  a 
soldier  and  his  captain,  or  other  officer  commanding  his 
troop  or  company,  but  that  is  no  argument  in  favor  of 
such  a  construction  Ijeing  placed  on  ours,  but  brings 
us  to  the  conclusion  that  in  making  the  change  in  its 
phraseology,  our  legislators  desired  to  place  no  bounds 
to  its  beneficial  effects  and  influences. 

ivroiiffs.  The  construction  has  always  obtained  in 
the  British  service,  that  the  wrongs  referred  to  must  re- 
late to,  wliat  is  commonly  termed  the  interior  economy 
of  a  company,  and  have  reference  to  pay  or  allowances, 
clothing,  messing,  or  the  repair  of  arms  and  accoutre- 
ments, and  must  resolve  itself  into  some  claim  not  ad- 
mitted by  the  soldier ;  and  the  British  article  of  April 
2oth,  1800,  confirms  the  above  construction,  by  limiting 
it  to  cases   in  which  lie  "  sliall  think  himself  wronged, 


174  MILITARY    LAW    AND    COURTS-MARTIAL. 

in  any  matter  affecting  liis  pay  or  elotliing,  by  liis  cap- 
tain, &c."  As  long  as  our  article  was  an  exact  trans- 
cript of  tlie  old  British  article,  just  so  long  their  intei'- 
pretation  held  good,  but  in  extending  its  operation  to 
all  officers,  the  wrongs  incurred  could  no  longer  be  cir- 
cumscribed within  the  narrow  bounds  of  a  company's 
interior  economy.  In  our  opinion,  therefore,  the  law  is 
applicable  to  every  possible  wrong  inflicted  by  an  offi- 
cer on  a  soldier,  when  that  ^yrong  is  capable  of  being 
redressed. 

Redress.  Upon  complaint  being  made  to  the  com- 
manding officer  of  the  regiment,  he  is  required  to  sum- 
mon ii  7r^(/i' mental  court-martial  for  the  doing  justice  to 
the  complainant.^  This  requirement  is  imperative  and 
compulsory.  Punishment  forms  no  part  of  its  office,  as 
the  supposed  wrong-doer  is  a  commissioned  officer  over 
whom  a  regimental  court-martial  has  no  jurisdiction, 
and  upon  whom  it  cannot  sit  in  judgment.  Neither 
can  it  be  considered  in  the  light  of  a  court  of  inquiry, 
because  these  are  prohibited  unless  directed  by  the 
President  of  the  United  States,  or  demanded  by  the 
accused.  This  court-martial  is  organized  for  s2oecial 
purposes,  and  the  only  authority  given  to  it,  is  to  decide 
on  the  justice  or  injustice  of  the  complaint.  Even  an 
opinion  pointing  directly  to  the  character  of  an  officer 
cannot  be  given,  it  must  be  confined  to  the  merits  of 
the  complaint,  and  simply  state  whether  or  not  it  be 
well  founded,  and  to  what  extent.  "  To  do  ^justice  to 
a  complainant^  and  to  sustain  the  majesty  of  a  violated 
law,  are  two  very  different  things.     In  the  one  case,  a 


*The  British  article  of  war,  13  (April  25th,  1860),  says,  "to  summon  a  regimen- 
tal court  of  inquiry,  for  the  purpose  of  determining  whether  such  complaint  is  just  " 


i 


REDRESSi:srG    WRONGS,    AN13    APPEALS.  175 

wrong  may  be  remedied  to  tlie  entire  satisftxction  of  tlie 
conij)lainant ;  but  in  cases  of  a  violation  of  latu  by  an 
officer,  and  wliere  the  majesty  of  tlie  law  is  to  be  vindi- 
cated by  the  infliction  of  a  penalty  upon  the  aggressor, 
if  a  commissioned  officer,  a  regimental  court-martial 
should  not  be  summoned,  the  trial  of  a  commissioned 
officer  by  such  court  being  prohibited  by  the  67th  arti- 
cle of  w^ar ;  and  an  incpiiry  antecedent  to  a  trial  by  a 
general  court-martial  would  be  a  violation  of  a  wise 
provision  of  the  92d  article  of  war."* 

The  individual  aggrieved  must,  in  the  first  place, 
seek  redress  at  the  hands  of  the  officer  who  has  A\a'ong- 
ed  him,  and  it  is  only  wh«n  this  redress  is  denied  him, 
and  he  still  thinks  himself  wronged,  that  he  carries  his 
com})laint  to  the  commanding  officer  of  the  regiment. 
This,  though  not  required  l)y  the  letter  of  the  law,  is 
strictly  in  consonance  with  the  fixed  rule  for  communi- 
cating with  suj^eriors ;  and  l)esides,  the  supposed  wrong- 
doer may  at  once  do  justice  to  the  complainant,  and 
obviate  the  necessity  for  further  proceedings.  Having 
received  the  complaint,  the  commanding  officer  of  the 
regiment  is  compelled  to  summon  a  regimental  court- 
martial  for  the  doing  justice  to  the  coni])lainant.  If 
the  alleged  ^^Tong  be  i)roved  l)efore  the  court-martial, 
its  decision  must  be  such  as  shall  cause  the  wrong  to 
be  remedied.  The  decision  being  then  adverse  to  the 
officer,  it  becomes  the  dut}-  of  the  commanding  officer 
of  the  regiment  to  see  that  the  officer  does  justice  to 
the  complainant.  If  the  officer  refuse  so  to  d(^,  while  he 
takes  no  appeal  from  the  decision,  his  refusal  becomes 
an  offence,  and  he  is  liable  to  trial  by  a  general  court- 

*  G  0.  No  13,  Wir  Department,  February  20th,  1843. 


1Y6  MILITARY    LAW    AND    COURTS-MARTIAL. 

martial,  for  disobedience  of  tlie  orders  of  tlie  colonel, 
and  for  contempt  of  tlie  decision  of  tlie  regimental  court. 

Appeal.  From  the  award  of  the  court,  either  party, 
the  soldier  or  the  officer,  may,  if  he  thinks  himself  still 
aggrieved,  appeal  to  a  general  court-martial.  But  if 
upon  a  second  hearing,  the  appeal  shall  appear  vexa- 
tious and  groundless,  the  appellant  shaE  be  2:)unished  at 
the  discretion  of  the  said  court.  The  absolute  right  of 
appeal  is  thereby  given  to  either  party.  Should  the 
decision  be  against  the  appellant,  the  court  may  state 
that  the  appeal  did  not  appear  vexatious,  as  in  truth  it 
need  not  of  necessity  be,  for  the  appellant  might  have 
entertained  an  honest  but  erroneous  view  of  the  case. 
Should  the  appeal,  however,  bear  palpable  evidence  of 
its  vexatiousness  or  groundlessness,  the  court  itself  has 
power  to  award  summary  jjuuishment. 

This  is  the  only  case — the  redressing  of  wrongs — in 
which  an  appeal  can  be  made  to  a  higher  tribunal, 
under  the  articles  of  war ;  thus  exhibiting  special  jeal- 
ousy for  the  rights  of  inferior  officers  and  soldiers,  by 
making  in  their  favor  a  marked  exception  to  the  ordi- 
nary course  of  military  trials. 

]Tio<ic  of  Prococdijis.  The  regimental  court-martial 
being  assembled,  and  the  parties  present,  the  order  con- 
vening the  court  is  read,  and  both  the  appellant  and 
defendant  exercise  the  right  of  challenging  any  of  the 
meml)ers.  The  court  is  then  duly  sworn.  The  com- 
plairiant  next  makes  a  statement  of  his  grievance,  and 
proceeds  to  substantiate  it  by  bringing  in  evidence, 
under  oath,  to  prove  the  alleged  wrong.  The  officer 
may  then  adduce  any  testimony  he  may  have,  in  refuta- 
tion or  explanation,  and  make  such  statement  as  he 


REDRESSING    WRONGS,    AND    APPEALS.  177 

may  deem  necessary  to  liis  exculpation.  All  tlie  evi- 
dence and  explanations  liaving  been  received  and  re- 
corded, tlie  court  is  closed  for  deliberation,  and  comes  to 
a  decision  on  tlie  merits  of  tlie  case.  The  proceedings 
are  sul)ject  to  the  confirmation  or  disapproval  of  the 
officer  ordering  the  court. 

From  this  decision,  should  either  party  think  himself 
still  aggrieved,  he  may  appeal  to  a  general  court-martial^ 
by  which  the  whole  su1)ject  is  again  investigated.  It  is 
a  new  trial  of  the  very  same  circumstances,  and  accord- 
ing to  Blackstone  "  a  new  trial  is  a  rehearing  of  the 
cause  before  another  jury,  l)ut  with  as  little  prejudice 
to  either  party  as  if  it  had  never  been  heard  before. 
No  advantage  is  taken  of  the  former  verdict,  and  the 
subsequent  verdict,  though  contrary  to  the  first,  imports 
no  tittle  of  blame  upon  the  former  jury,  who,  had  they 
possessed  the  same  lights  and  advantages,  would  proba- 
bly have  altered  their  own  opinion."  The  members  of 
the  regimental  court  can  neither  aj^pear  in  court  as  de- 
fendants, nor  take  any  part  in  the  proceedings,  nor  can 
they  be  examined  as  to  any  point  connected  with  the 
former  trial.  The  appellant  sustains  the  part  of  prose- 
cutor, and  the  pai-ty  in  whose  favor  the  inferior  court 
has  given  its  judgment  is  defendant  in  the  cause ;  the 
complaint  on  the  original  trial  being  the  matter  in 
issue,  on  the  truth  or  falsity  of  which  the  general  court 
is  to  decide.  Witnesses  may  l)e  called  by  either  party, 
whether  they  have  been  examined  before  the  inferior 
court  or  not.  "  By  consent  of  the  parties  the  evidence 
at  the  former  trial  may  be  admitted."*  Before  neither 
of  these  coui-ts  does  any  one  appear  as  a  prisoner. 

*  Tytler,  p.  336. 

12 


178  :military  law  aist)  couets-maetial. 

The  court  having  assembled,  the  appellant  and  re- 
spondent being  present,  the  order  convening  the  court 
is  read.  The  judge  advocate  then  informs  the  court, 
that  the  case  about  to  be  investigated  is  an  appeal  from 
a  regimental  to  a  general  court-martial,  unless  the  object 
of  the  trial  be  embodied  in  the  order  for  assembling. 
Both  parties  have  the  right  of  challenging.  The  court 
is  then  duly  sworn.  The  statement  of  the  appellant's 
alleged  wrong  is  novv  read  and  recorded ;  after  which 
he  adduces  evidence  in  su]3port  thereof.  The  appellant 
should  not  in  any  case  be  sworn.  When  the  appellant's 
case  is  fully  before  the  court,  the  respondent  replies  to 
it,  l^y  argument  and  such  testimony  as  he  considers 
necessary.  He  should  not  be  sworn,  unless  requii'ed  to 
be  so  by  the  a23pellant,  or  thought  necessary  by  the 
court,  that  he  may  depose  to  facts.  The  examination  of 
witnesses,  who  must  all  give  their  evidence  on  oath,  is 
taken  in  precisely  the  same  manner  as  on  other  courts- 
martial. 

The  trial  beino;  finished,  the  court  deliberates  on  the 
evidence  which  has  been  adduced  before  it,  and  gives 
an  opinion  thereon.  This  opinion  consists  in  the  declara- 
tion that  the  decision  of  the  regimental  court-martial, 
from  which  the  appellant  has  appealed,  is,  or  is  not, 
borne  out  by  the  evidence  recorded  on  the  proceedings. 
Should  the  court  be  further  of  opiuion  that  the  appeal 
is  vexatious  and  groundless,  such  fact  A^•ill  be  stated, 
and  the  court  would  proceed  to  sentence  him  at  its  dis- 
cretion. It  then  remains  for  the  reviewing  authority  to 
confirm  or  disapprove  the  proceedings  and  oj^inion  of 
the  court. 


CHAPTEE    XVI. 

COURTS  OF  INQUIRY. 

A  couET  of  inquiry  may  be  considered  more  a  coun- 
cil than  a  court,  wliicli  an  officer  in  command  may  take 
advantage  of  to  assist  liim  in  forming  his  judgment  on 
any  doubtful  or  intricate  subject.  It  is  sometimes  called 
upon  to  receive  and  methodize  information  only ;  at  other 
times,  to  give  an  opinion  on  any  question  or  subject 
proposed.*  In  the  British  service  there  is  no  specific 
enactment  for  holding  such  courts,  l)ut  the  power  seems 
to  1)6  an  emanation  from  the  prerogative  of  the  crown, 
and  to  have  been  consecrated  by  custom  as  part  of  the 
military  judicature. 

Authority  to  Cosiveiie.  For  the  army  of  the  United 
States,  courts  of  inquiry  have  been  sj^ecially  authorized 
by  the  91st  and  92d  articles  of  war.  The  power  to 
order  them  is  therein  strictly  confined  to  the  President 
of  the  United  States,  unless  demanded  by  the  accused. 
No  one,  therefore,  but  the  executive  can,  of  his  own 
motion,  order  a  court  of  inquiry.  Upon  application  of 
the  accused,  all  commanding  officers  have  the  undoul)t- 
ed  power  to  order  such  courts,  though  the  practice  of 
the  service,  in  cases  of  commissioned  officers,  has  limited 
its  exercise  to  those  who  can  convene  general  courts- 
martial  ;  and  in  the  case  of  enlisted  men  to  those  officers 
who  can  assemble  either  of  the  inferior  courts. 

*  Griffith's  Xotcs,  p.  133. 


180  MILITARY    LAW   AND    COrETS-MARTIAL. 

Nnmber  of  Hembcrs.  Tlie  court  sliall  consist  of  one 
or  more  officers,  not  exceeding  three,  and  a  judge  advo- 
cate, or  other  suitable  person,  as  a  recorder,  to  reduce 
the  proceedings  and  evidence  to  WTiting. 

Jiirisidiction.  Their  jurisdiction  only  extends  to  an 
examination  into  the  nature  of  any  transaction,  accusa- 
tion, or  imputation  against  any  officer  or  soldier,  but 
they  shall  not  give  their  opinion  on  the  merits  of  the 
case,  excepting  they  shall  be  thereto  specially  requii'ed. 
The  order  directing  the  court  to  assemble  should  con- 
tain instructions  as  to  the  extent  of  the  investigation, 
and  should  also  state  whether  or  not  the  court  is  to  re- 
port the  facts  merely,  or  give  an  opinion  on  the  merits 
of  the  case.  The  court  must  conform  strictly  to  these 
directions,  either  by  giving  a  general  opinion  on  the 
whole  matter  and  whether  further  investigation  and 
action  are  called  for,  or  a  statement  of  facts  only,  or  these 
^^^th  an  opinion  thereon ;  its  duties  depending  entirely 
on  the  instructions  which  the  authority  convening  the 
court  may  think  proper  to  give.  Except  when  ordered 
by  the  President,  the  cornet  cannot  be  directed  to  inves- 
tigate other  matters  than  those  for  which  the  officer  or 
soldier  has  demanded  the  court,  unless  such  incidental 
examination  of  particular  points  becomes  necessary  for  a 
true  understanding  of  the  matter  in  issue. 

The  Accused.  Although  the  accused  cannot  refuse  to 
obey  an  order  du-ecting  him  to  appear  before  a  com-t  of 
inquiiy,  convened  for  the  purpose  of  inquiring  into  his 
conduct,  he  may  object  to  take  any  part  in  the  proceed- 
ings, and  decline  answering  any  qu<'Stions  which  may, 
in  his  oj^inion,  be  prejudicial  to  his  cause  in  the  event 
of  a  trial.     From  the  very  language  of  the  article,  he 


COURTS    OF   INQUIRY.  181 

lias,  liowever,  a  positive  right  to  be  present  at  the  ex- 
amination, because  "the  parties  accused  shall  also  be 
permitted  to  cross-examine  and  interrogate  the  wit- 
nesses, so  as  to  investigate  fully  the  circumstances  in 
the  question." 

The  judge  advocate,  as  recorder,  is  the  prosecutor  in 
the  case ;  the  accuser  may,  however,  be  permitted  to  re- 
main in  court  and  make  suggestions  to  the  judge  advo- 
cate. The  cornet  may  allow  the  accuser  to  appear  and 
prosecute  the  inquiry,  as  was  done  in  the  case  of  General 
Pillow,  where  the  accuser  was  the  prosecutor.  The 
duty  of  the  judge  advocate,  as  recorder,  is  to  reduce  the 
proceedings  and  evidence  to  writing. 

ciiaiiengc.  It  has  been  decided  and  is  now  an  es- 
tablished principle,  that  members  of  a  court  of  inquiry 
can  be  challenged,  for  cause,  by  either  party.  And  this 
upon  oljvious  grounds.  The  proceedings  l)efore  such  a 
court  do  not  differ  materially  in  character  from  a  trial, 
except  in  the  not  finding  and  sentencing.  The  members, 
judge  advocate,  and  mtnesses  are  sworn,  and  the  parties 
have  the  right  of  cross-examination.  In  giving  their 
opinion,  therefore,  when  such  opinion  is  required,  it  is 
absolutely  essential  that  the  members  should  arrive  at 
their  conclusions  after  a  candid  and  impartial  investiga- 
tion. The  result  may  bear  hard  upon  the  accused  in  its 
effect  upon  puTjlic  opinion,  and  the  right  of  challenge, 
exercised  solely  for  the  Ijenefit  of  the  accused,  and  to 
attain  impartial  justice,  should  l)e  j)ermitted,  suljject  of 
coui'se  to  a  wise  discretion  on  the  ])art  of  the  court  itself. 

Secrecy.  By  reference  to  the  oath  prescribed  for  the 
members  and  the  separate  one  for  the  judge  advocate,'' 

*  93d  article  of  war. 


182  jnLITARY    LAW    AND    COUETS-MAETIAL. 

it  will  be  seen  that  neither  are  bound  to  secrecy.  The 
members  are  required  to  truly  examine  and  inquire  into 
the  matter  before  them,  according  to  the  evidence ;  and 
the  judge  advocate  to  accurately  and  impartially  record 
the  proceedings  of  the  court  and  the  evidence  given  in 
the  case.  Custom  has,  however,  fixed  the  practice  not 
to  disclose  any  'portion  of  the  proceedings,  unless  sanc- 
tioned so  to  do  by  the  superior  authority  to  whom  the 
proceedings  are  submitted,  because  the  expression  of  any 
opinion  might  p]*ejudice  the  accused  before  the.  public, 
and  may  be  of  great  injuiy  to  his  cause  in  case  of  trial 
by  court-martial. 

ivitnesses.  "*  Courts  of  Inquiry  have  the  same  power 
to  summon  witnesses  as  courts-martial. 

Counsel.  The  parties  before  a  Court  of  Inquiry — 
the  accuser  and  the  accused — may  be  allowed  counsel. 

The  iiours  of  sitting  are  not  limited  for  courts  of  in- 
quiry. The  statute  is  also  silent  as  to  whether  the  comi 
shall  sit  with  dosed  or  open  doors^  but  the  legal  authori- 
ties are  unanimous  that  it  may  be  open  or  closed  as  the 
authority  convening  it  shall  prescribe.  In  other  words, 
courts  of  inquiry  are  inherently  closed  courts,  to  which 
persons  have  access  by  j^ermission  and  not  of  right. 
I  ^"VTiere  the  authority  ordering  the  court  is  silent  on  this 

i  point,  the  court  decides  at  its  discretion. 

Contempts  l)efore  courts  of  inquiry  are  as  punishable 
I  as  if  committed  before  coui'ts-martial.     Officers  may  be 

placed  in  arrest,  and  soldiers  be  confined  by  its  order. 

The  accused  is  not  necessarily  in  arrest^  when  attend- 
ing a  court  of  inquiry. 

Record.  The  92d  article  prescribes  that  the  \)Y0- 
ceedings  of  a  court  of  inquiry  must  be  authenticated  by 


I 


COURTS    OF   INQUIRY.  183 

the  signature  of  tlie  recorder  and  tlie  president,  and  de- 
livered to  tlie  convening  authority,  and  the  said  proceed- 
ings may  be  admitted  as  evidence  by  a  court-martial,  in 
cases  not  capital,  or  extending  to  the  dismission  of  an 
officer,  provided  that  the  circumstances  are  such  that 
oral  testimony  cannot  be  obtained.  The  proceedings 
may  be  returned  for  revision,  as  in  the  case  of  courts- 
martial. 

The  accused  cannot  demand  a  copy  of  the  proceed- 
ings, as  the  legal  right  is  confined  tu  the  case  of  a  trial 
before  a  general  court-martial.* 

Statute  of  liiiuitatiou.  It  was  the  oj)inion  of  the 
attorney-general  that  where  there  is  no  pertinent  stat- 
ute nile,  a  court  of  inquiry  is  to  be  governed  by  the 
general  principles  of  military  law,  applying  the  analo- 
gies of  a  court-martial  where  those  are  aj)plicable,  and 
recurring  to  adjudged  cases,  precedents  ruled,  authori- 
tative legal  opinions  and  approved  books  of  legal  expo- 
sition.f 

In^his  "  Practice  of  Courts-Martial"  General  Macomb 
lays  down  the  principle  that  "  transactions  may  become 
the  suTyect  of  investigation  l^y  coui'ts  of  inquiry  after  a 
lapse  of  any  number  of  years,  on  the  application  of  the 
party  accused,  or  by  order  of  the  President  of  the  Unit- 
ed States  ;  the  limitation  mentioned  in  the  88th  article 
being  aj^plicable  only  to  general  courts-martial."  J 

De  Hart  does  not  accede  to  this  doctrine,  fii'st,  be- 
cause of  the  doubts  he  entei-tains  of  the  power  of  the 
President  to  dismiss  an  officer  of  the  army.  Had  the 
President  that  power,  a  court  of  inquiry  might  be  con- 

*  90th  article  of  war.  f    Opinions,  Jan.  31st,  1857. 

X  Pago  91. 


184  JnLITAEY   LAW    AND    COUKTS-^rAKTIAL. 

siclered  a  favor  by  wliicli  an  accused  person  may  liave 
an  opj^ortunity  of  justifying  liimself.  "  But  the  power 
of  the  President  to  dismiss  officers  beins;  an  established 
legal  doctrine,  the  objection  fails  for  want  of  premises."-* 
Secondly,  l^ecause  of  the  inconvenience  to  officers  whose 
conduct  is  the  subject  of  inquiiy,  and  of  the  possibility 
that  this  power  may  be  abused  in  the  hands  of  those  in 
command.  The  generality  of  these  objections  consti- 
tutes theii'  best  refutation.  There  must  necessarily 
enter  into  a  proper  discussion  of  the  subject,  much 
higher  and  broader  considerations  of  the  public  service. 

The  great  purpose  of  a  coiu't  of  inquiry  is  to  collect 
information,  by  which  to  guide  the  discretion  of  him 
who  orders  it.  The  exercise  of  that  discretion  may 
lead  to  a  court-martial,  but  not  necessarily.  The  sub- 
ject of  inquiry  may  be  so  comprehensive  that  its  rela- 
tion to  individuals  may  be  of  secondaiy  consideration. 
It  may  involve  matters  of  public  welfare  and  of  the 
general  well-being  of  the  ser\^ce  ;  and  as  to  the  excul- 
pation of  individuals,  it  is  certain  that  the  statute  of 
limitation  but  ill  performs  that  office ;  it  wholly  fails  to 
satisfy  the  point  of  honor. 

"It  may  ha2:)pen  that  questions  shall  arise  as  to  an 
offence  alleged  to  have  been  committed  by  an  officer 
more  than  two  years  ago,  as  to  Avhicli  he  ought  to  be 
exculpated  if  innocent,  or  if  guilty  dismissed  by  the 
President,  though  not  liable  to  be  tried  by  com*t-mar- 
tial.  In  such  a  case,  a  com-t  of  inquiry  protects  the 
officer,  and  informs  the  conscience  of  the  executive. 

A  court  of  inquiiy  may  be  needed  for  the  very  pur- 
pose of  ascertaining  whether  an  alleged  offence  was  or 

*  Opinions,  Dec.  30tli,  1S53. 


COURTS    OF   INQUIRY.  185 

was  not  committed  witliin  two  years,  and  so  informing 
the  mind  and  guiding  tlie  discretion  of  the  executive  on 
the  very  point  of  the  legality  of  a  court-martial. 

In  a  word,  coui'ts  of  inquiry  are  not  limited  in  the 
terms  of  the  articles  of  war ;  it  is  well  settled  that  they 
ai'e  not  limited  by  construction  in  Great  Britain ;  the 
more  general  conclusion  has  been  the  same  in  this  coun- 
try ;  and  that  conclusion  seems  to  me  consonant  with 
the  general  principles  of  law,  and  especially  convenient 
in  a  constitutional  government  like  the  United  States. 

*  Opiuions,  Dec.  30th,  1853. 


?5* 


CHAPTER   XYII. 

BOAEDS  FOE  RETIRING  DISABLED  OFFICERS. 

Autisoriiy.  By  tlie  "  Act  P^o^^ding  for  tlie  Better 
Organization  of  the  Military  Establisliment,"  approved 
August  3d,  1861,  it  is  enacted,  that  any  commissioned 
officer  of  the  army  who  shall  have  served  as  such  forty 
consecutive  years,  may,  upon  his  own  application  to  the 
President  of  the  United  States,  be  placed  u^^on  the  list 
of  retired  officers.*  And  it  is  foi'ther  enacted,  that  if 
any  commissiooied  officer  of  the  army  shall  have  become, 
or  shall  hereafter  become,  incapable  of  performing  the 
duties  of  his  office,  he  shall  be  placed  upon  the  retired 
list  and  withdrawn  from  active  service  and  command, 
and  from  the  line  of  promotion:  2)rovided  that  there 
shall  not  be  on  the  retired  list  at  any  one  tune  more 
than  seven  -per  centum  of  the  Avhole  number  of  officers 
of  the  army,  as  fixed  by  law.f 

In  order  to  carry  out  the  provisions  of  this  act,  the 
secretary  of  war,  under  the  duection  and  approval  of 
the  President  of  the  United  States,  shall,  from  time  to 
time,  as  occasion  may  require,  assemble  a  board  of  not 
more  than  nine  nor  less  than  five  .commissioned  officers, 
two-fifths  of  whom  shall  be  of  the  medical  stafi';  the 
board,  except  those  taken  from  the  medical  staff,  to  be 
composed,  as  far  as  may  1)e,  of  his  seniors  in  rank.J 

*  Section  loth.  f  Section  ICth.  X  Section  17th. 


BOARDS    FOE    EETIRESTG    DISABLED    OFFICERS.  187 

Tlie  jMi-isdiction  of  tliese  boards  extends  to  the  deter- 
minatiou  of  tlie  facts  as  to  tlie  natiiie  and  occasion  of 
tlie  disahility  of  such  officers  as  appear  disaljled  to  per- 
form military  service.  As  it  is  solely  by  direction  and 
approval  of  the  Pre;jident,  that  such  boards  are  assem- 
bled, cases  of  officers  can  be  brought  to  their  cognizance 
by  this  same  authority  alone ;  and  as  a  fm'ther  j)rotec- 
tion  to  individuals  where  such  vital  interests  as  their 
positions  in  active  service  are  in  question,  no  officer  shall 
be  retu-ed  either  partially  or  wholly  from  the  service 
without  having-  had  a  fair  and  full  hearing  before  the 
board,  if,  upon  due  summons,  he  shall  demand  it. 

These  boards  are  invested  by  law  with  the  powers  of 
a  coui't  of  inquiiy  and  coui't-martial,  and  their  decisions 
are  made  subject  to  like  revision  as  that  of  said  courts 
by  the  President  of  the  United  States.  Whenever  they 
find  an  officer  incapacitated  for  active  service,  the  statute 
requires  them  to  report  whether,  in  their  judgment,  the 
said  incapacity  resulted  from  long  and  faithful  service, 
from  wounds  or  injury  received  in  the  line  of  duty,  from 
sickness  or  exposure  therein,  or  from  any  other  incident 
of  service. 

The  action  of  a  board  assimilates  more  nearly  to  that 
of  a  court  of  inquiry,  as  it  is  not  a  trial  to  vindicate  the 
majesty  of  violated  law,  but  a  strict  investigation  of  the 
facts  in  the  case,  with  judgment  thereon.  In  conducting 
the  proceedings,  therefore,  the  rules  which  govern  coui'ts 
of  inquiry  are  closely  applicable. 

ciiaiieiigc.  The  party  whose  case  is  before  the 
board,  has  the  same  right  to  challenge  as  that  of  a  pris- 
oner before  a  court-martial.  This  follows  directly  from 
the  sj^u'it  of  the  law,  which  gives  him  the  right  of  a 


188  MILITARY    LAW    AT^D    COURTS-MARTIAL. 

fair  and  full  hearing  if  lie  sliall  demand  it.  That  a 
member  entertaining  feelings  of  malice  toward  the  party 
concerned,  should  l>e  excused  from  ser^-ing,  is  as  neces- 
sary to  imjDartial  justice  in  such  an  investigation  as  on 
a  trial  before  a  court-martial.  In  the  one  case  the 
accused  is  punished  if  convicted;  in  the  other  if  judg- 
ment be  adverse,  the  party  loses  his  position  in  active 
ser^-ice,  and  fiu'ther  still,  is  liable  to  one  of  three  condi- 
tions of  retirement,  either  of  which  will  weigh  most 
heavily  u23on  an  officer  in  a  pecuniary  point  of  view,  in 
the  natui'e  of  a  fine  of  greater  or  less  magnitude,  accord- 
ing to  the  judgment  of  the  board. 

Oath.  The  statute  provides  "  that  the  members  of 
the  board  shall  in  every  case  be  sworn  to  an  honest  and 
impartial  discharge  of  their  duties."  The  judge  advo- 
cate is  also  sworn  to  record  the  proceedings  of  the  board 
and  the  evidence  in  the  case,  accurately  and  impartially, 
for  although  this  is  not  mentioned  in  the  law,  yet  justice 
demands  that  the  officer  who  keeps  the  record,  examines 
witnesses,  <fec.,  and  is,  besides,  the  legal  adviser  of  the 
board,  should  be  forced  to  an  honest  discharo-e  of  his 
duties  through  the  binding  efficacy  of  an  oath. 

The  board  is  not  bound  to  secrecy,  but,  as  in  the  case 
of  a  court  of  inquiry,  its  action  should  not  be  divulged 
until  published  by  proper  authority. 

'\Vitnesj«cs.  These  boards  have,  equally  with  courts- 
martial,  the  power  to  summon  witnesses,  and  decide  upon 
the  competency  and  admissibility  of  evidence,  and  the 
legal  scope  of  the  investigation  in  each  particular  case. 

Couii§ei.  The  party  concerned  may  l)e  allowed  coun- 
sel, on  ai^plication  to  the  board. 

Contempts.     Being    invested   -^vith   like    powers    as 


BOARDS    FOR    RETIRING    DISABLED    OFFICERS.  189 

courts-martial,  contempts  before  tliem  may  l)e  punislied 
summarily ;  and  officers  of  whatever  grade  may  be 
arrested,  and  soldiers  confined,  by  tlieir  order. 

Tlie  party  concerned  is  not  in  arrest  when  before  the 
board,  and  he  may,  or  may  not  ap2:)ear  before  it,  at  his 
option. 

The  board  sits  with  open  doors,  except  when  ques- 
tions arise  demanding  its  decision,  which  is  always  made 
with  closed  doors. 

Rights  of  the  Party.  The  party  concerned  has  the 
right  to  cross-examine  witnesses,  and  to  call  witnesses, 
and  to  offer  argument. 

Decision.  The  board  closes  for  deliberation,  and 
whenever  it  finds  an  officer  incapacitated  for  active  ser- 
vice, will  rej)ort  its  judgment  as  to  the  cause  of  said 
incapacity.  The  proceedings  of  the  board  must  then 
be  authenticated  by  the  signatures  of  the  presiding  offi- 
cer and  judge  advocate,  and  transmitted  to  the  secretary 
of  war  to  be  laid  before  the  President  of  the  United 
States  for  his  action,  the  proceedings  being,  by  law,  made 
subject  to  his  revision. 

If  it  be  the  judgment  of  the  board,  approved  by  the 
President,  that  the  said  incapacity  "  results  from  long 
and  faithful  service,  from  wounds  or  injury  received  in 
the  line  of  duty,  fi'om  sickness  or  ex|:>osure  therein,  or 
from  any  other  incident  of  service,"  the  disabled  officer 
shall  thereuj^on  be  placed  upon  the  list  of  retired  officers, 
with  the  pay  proper  of  the  highest  rank  held  by  him  at 
the  time  of  his  retirement,  and  four  rations  per  day.  If, 
however,  the  judgment  of  the  board,  approved  by  the 
President,  be  that  the  said  incapacity  did  not  result 
from  long  and  faithful  service,  &c.,  but  otherwise,  the 


190  MILITAEY    LAW    AND    COUBTS-MARTIAL. 

fficer  shall  }n'  retired  as  ahove,  eitljcr  with  liis  pay 
projK^r  alone,  or  with  his  service  rations  alone,  at  the 
dlscTetion  of  the  President,  or  he  shall  l>e  wholly  retired 
from  the  service,  with  one  year's  pay  and  allowances; 
and  in  this  last  case,  his  name  shall  l>e  omitted  frf)m  the 
army  register.*  The  law  has  thus  fixed,  in  terms,  the 
a<.'tir)n  of  the  executive  in  any  case  that  ma}  arise. 

R<'%l«iion.  Shrnild  the  j»roceedings  in  any  ease,  require 
fiiillier  and  more  careful  d(*]ilKTation,  the  President  ma} , 
at  his  rliwTetion,send  them  back  to  the  hoard  for  revision. 

TIk;  party  interested  mny  d<'mand  a  ffj^r//  of  the  j>ro- 
('('/diiKjn^  as  with  courts-martial. 

DrcMM.  The  officers  pailially  retired  shall  he  entitled 
to  wear  the  unifonn  of  thcrir  resp(?ctive  ^n-ades,  shall 
continue  to  he  home  u]»on  the  anny  regist(;r,  and  shall 
]>e  suliject  tf)  \\w.  niles  and  articles  of  war,  and  to 
tT'ial  hy  general  court-martial  for  any  hreach  of  the  said 
art.i<'l<-s.f 

Tlio  «iiiiiil(>  or  llniliniion  do('S  X\(A  'i]»ply  to  hoards 
for  retiring  disal»hMl  officers,  and  traiis}i(ti(»ns  nmning 
hack  through  the  officer's  entire  length  of  service.,  may 
)>ecome  sul»ject  to  investigation.  The  law  states  that 
the  lM»anl  sliall  determine  facts  as  to  the  nnture  an<l 
ofrasion  of  th(!  disahility.  The  occasi(»n  may  (hite  hnck 
a  numher  of  years,  and  without  the  ]>ower  to  investigate 
m/ittcrs  ihnt  transpired  uV  th.'il  ]»eriod,  tin*  rnd  fur  which 
the  hoard  is  ass«;njhled  would  he  signjill}  defeated.  In 
order  to  pass  judgment  und(Tstandingly,  thelxwird  nuist 
not  only  he  ahle  to  dr(i(hi  U]»nn  the  fnrt  <»f  tin-  jil'esent 
disnliility,  hut  also  as  t«i  tlie  cdiisr,  ninntc  th(>ui.di  it  he, 
of  tliat  disahility. 

•  S«i(itl(in  I7l,li.  ■!  Siioliiiu  IMth. 


-wa.- 


_:,  "S&i^  :hi-: 


li^  ewe.  '•as  inih-  Tsaiat  Irx  lafe- 


w&^  ^ 


CHAPTEE  XYIII. 
OF  THE  JUDGE  ADVOCATE. 

Authority  to  Appoint.  By  the  act  of  Congress  ap- 
proved March  IGtli,  1802,  it  is  enacted,  "That  whenever 
a  general  court-martial  shall  be  ordered,  the  President 
of  the  United  States  may  appoint  some  fit  person  to  act 
as  judge  advocate,  who  shall  be  allowed,  in  addition  to 
his  other  pay,  one  dollar  and  twenty-five  cents  for  every 
day  he  shall  be  necessarily  employed  in  the  duties  of 
the  said  court,  and  in  cases  where  the  President  shall 
not  have  made  such,"  &c.  And  by  the  69th  ai-ticle  of 
the  rules  and  articles  of  war,  it  is  provided  that  "  The 
judge  advocate,  or  some  person  deputed  by  him,  or  by 
the  general,  or  ofi&cer  commanding  the  aiTQy,  detach- 
ment, or  garrison,  shall  prosecute  in  the  name  of  the 
United  States,  but  shall  so  far  consider  himself  as  coun- 
sel for  the  prisoner,  after  the  said  prisoner  shall  have 
made  his  plea,  as  to  object  to  any  leading  question  to 
any  of  the  mtnesses,  or  any  question  to  the  prisoner 
the  answer  to  which  might  tend  to  criminate  himself; 
and  administer  to  each  member  of  the  court,  before 
they  proceed  upon  any  trial,  the  following  oath,"  &c. 

The  power  to  appoint  a  judge  advocate,  or  some  per- 
son to  officiate  as  such  whenever  a  general  court-martial 
is  ordered  and  assembled,  flows  from  the  above  quoted 
laws ;  and  the  practice,  based  upon  their  liberal  inter- 


THE   JUDGE    ADVOCATE.  193 

pretation  i?<,  that  the  power  to  appoint  some  fit  person 
to  act  as  such,  is  coextensive  with  the  power  to  convene 
a  general  court-martial.  This  power  may  be  deputed  to 
a  commanding  officer  of  a  detachment  or  garrison,  when 
the  peculiar  exigencies  of  the  service  demand  it. 

That  the  judge  advocate  should  be  a  military  por§on, 
is  directly  implied  in  the  above  article,  where  the  "  tit 
person"  is  compensated  for  his  services  by  a  specified 
allowance  "  in  addition  to  his  other  pay,"  thus  having 
direct  reference  to  some  person  already  in  the  employ  of 
the  government.  The  dejmty^  for  w^hose  appointment 
provision  is  made  in  the  69th  article,  must  come  under 
the  same  rule,  if  we  take  a  lil)eral  view  of  the  two  arti- 
cles above  quoted,  in  connection  with  the  practice  of 
armies  in  such  cases.  Furthermore,  the  responsibility 
of  the  individual  exercising  such  vital  and  important 
functions  in  the  administration  of  military  justice, 
should  be  fixed  beyond  cavil,  and  as  none  Init  a  mili- 
tary person  would  be  amenable  to  military  law,  and 
subject  to  the  military  superior  for  the  faithful  perform- 
ance of  duty,  so  none  l)ut  those  subject  to  such  authori- 
ty should  l)e  permitted  to  assume  such  responsiT)ilities. 

Tile  judge  advocate  must  be  a  fit  person,  whose  pres- 
ence, duly  appointed  by  authority,  is  essential  to  the 
jurisdiction  of  a  general  court-martial ;  who  is  the  legal 
adviser  of  the  court ;  the  ^^^'if^uim  mohile  of  a  court-mar- 
tial, as  McArthur  says,  not  only  impelling  it  to  action, 
l)ut  on  whom  in  a  great  measure  depends  that  harmony 
of  motion  so  necessary  to  constitute  a  regular  court.  It 
is  very  evident  that  in  the  prosecution  of  crimes  before 
a  special  tribunal  erected  for  si)ecial  pur2')oses,  a  thor- 
ough knowledge  of  the  laws  enacted  for  their  govern- 
13 


194  MILITARY    LAW    AjSTD    COUETS-MAETIAL. 

ment,  and  of  the  practice  in  similar  cases,  is  most  essen- 
tial, and  siicli  information  cannot  be  found  outside  of 
the  army,  nor  the  want  of  it  compensated  by  any  fund 
of  legal  lore.  Sii'  Charles  J.  Isapier  truly  observes, 
that  no  one  should  hold  this  aj^pointment  till  after 
undergoing  a  strict  examination  as  to  his  knowledge  of 
military  and  criminal  law,  and  the  j^ractice  of  military 
courts.  But  whatever  be  his  qualifications,  he  should, 
when  conducting  the  proceedings  of  a  court-martial,  be 
impressed  with  the  facts;  that  justice  is  the  object  for 
which  a  court-martial  is  convened  and  the  judge  advo- 
cate appointed ;  that  the  great  principle  of  a  military 
court  is  honor ;  a  conscientious  adherence  to  substantial 
justice ;  that  the  lousiness  of  courts-martial  is,  not  to  dis- 
cuss points  of  law  but  to  get  at  the  truth  l:)y  all  the 
means  in  their  power ;  and  that  a  judge  advocate  is  the 
main  sj^ring  of  a  court-martial ;  that  ou  him  the  court 
depends  for  information  concerning  the  legality  as  well 
as  the  regularity  of  its  proceedings ;  and  if  he  errs  all 
may  go  wrong.* 

Besides  a  perfect  familiarity  with  the  I'ules  and  arti- 
cles of  war,  the  general  regulations  of  the  arm}-^,  and 
the  orders  bearing  on  the  subject  and  issued  by  compe- 
tent authority,  he  should  have  recourse  to  the  standard 
works  on  military  law  and  the  practice  of  courts-mar- 
tial, for  information  ou  the  many  j^oints  not  fixed  by 
authority. 

Prosecutor.  By  statute  the  judge  advocate  is  the 
official  prosecutor  of  the  United  States,  and  when  the 
military  accuser  is  permitted  to  be  ]>resent,  it  is  not  as 
a  prosecutor,  but  only  as  adviser  or  assistant  to  the 

*  Hughes'  Duties  of  Judge  Advocate,  p.  15. 


THE   JUDGE   ADVOCATE.  195 

foiTQer,  that  liis  influence  in  tlie  case  pending  can  be 
felt.  No  officious  interference  on  Hs  part  would  be 
tolerated,  but  his  advice  ought  to  be  given  privately  to 
the  judge  advocate.  After  the  prisoner  has  made  his 
plea,  it  is  made  the  duty  of  the  judge  advocate,  so  far 
to  identify  himself  with  the  interests  of  the  prisoner, 
as  to  ol)ject  to  any  leading  questions  to  any  of  the  wit- 
nesses, and  to  any  questions  to  the  accused  the  answers 
to  which  might  tend  to  criminate  himself  This  duty 
he  is  to  perform  whether  or  not  the  accused  has  counsel 
to  assist  him  in  the  defence.  The  object  of  the  court  is 
not  the  conviction  of  the  prisoner,  as  a  necessity,  but 
the  arriving  at  the  truth,  that  there  may  not,  in  any 
case,  be  a  failure  of  justice,  and  justice  does  not  mean  a 
conviction  rather  tliau  an  acquittal. 

While  a  judge  advocate  should  never  omit  any  thing 
which  may  be  of  service  to  the  prisoner,  neither  should 
he  permit  a  criminal  to  escape  punishment  through  any 
leniency  in  the  conduct  of  the  trial.  His  course  should 
be  thoroughly  impartial,  his  every  effort  being  directed 
to- the  attainment  of  truth.  "  Truth  and  equity  should 
l)e  most  conspicuously  seen  at  all  courts-martial,  but 
chicanery  never  permitted  to  enter  the  door."* 

The  law  expressly  states  to  wliat  extent  the  judge 
advocate  sliall  l)e  counsel  for  the  prisocicr,  and  as  the 
constitution  allows  to  an  accused  person  the  assistance 
of  counsel  in  his  defence,  in  all  criminal  prosecutions, 
the  duty  of  the  judge  advocate  as  such  is  restricted  to 
the  words  of  the  law,  as  indeed  it  must  be  from  the 
very  nature  of  the  case,  as  he  cannot  possibly  jieiform 
both  duties — prosecutor  and  counsel — at  the  same  time. 

*  Kennedy. 


196  MILITARY    LAW    AXD    COURTS-MARTIAL. 

The  practice  has,  however,  been  for  the  judge  advocate 
to  interfere  to  the  extent  to  which  the  court  itself  is 
bound  to  interpose  ;  to  take  care  that  the  prisoner  shall 
not  suffer  from  a  want  of  knowledofe  of  the  law,  or  from 
a  deficiency  in  experience  or  of  al)ility  to  elicit  from 
witnesses,  or  to  develop  by  the  testimony  a  full  state- 
ment of  the  facts  as  bearing  on  the  defence. 

In  court  the  judge  advocate  can  go  no  farther  in  his 
assistance,  but  out  of  court  his  advice  should  be  freely 
given  when  required,  and  every  assistance  extended  to 
the  accused  which  is  not  incompatible  with  the  honest 
discharge  of  his  duties  as  the  public  prosecutor.  High 
authority  has  emphatically  denounced  such  a  practice, 
on  the  ground  that  the  judge  advocate,  being  both  pros- 
ecutor and  counsel  for  the  prisoner,  can,  nine  times  out 
of  ten,  make  the  latter  appear  innocent  or  guilty  at  his 
pleasure :  he  is  like  a  man  playing  a  game  of  chess  with 
himself,  he  can  cause  either  the  red  or  the  white  side  to 
win  *  In  the  exercise  of  the  functions  of  his  office  as 
counsel  he  should,  therefore,  caution  the  accused  not  to 
divulge  his  line  of  defence,  or  the  nature  of  the  testi- 
mony he  intends  eliciting  from  his  witnesses,  and  con- 
fine his  advice  to  generalities  that  while  evolving  no 
essential  points  that  are  to  be  made  in  the  defence,  will 
inform  the  accused  as  to  the  best  manner  in  which  to 
conduct  it,  and  the  points  essential  to  be  proved  in 
order  to  insure  an  acquittal. 

Counsel.  As  it  is  a  positive  right  of  the  prisoner  to 
have  counsel  to  assist  him,  so  it  is  admitted  that  the 
judge  advocate  may  also  be  assisted  l)y  such  ;  but,  as  in 
the  case  of  counsel  for  the  defence,  he  can  take  no  fui*- 

*  Sir  C.  J.  Napier. 


THE   JUDGE    ADVOCATE.  197 

ther  part  in  the  proceedings  tlian  by  advising  tlie  judge 
advocate  upon  sucli  points  as  may  demand  liis  attention. 
This  counsel  must  be  admitted,  solely  on  the  part  of  the 
United  States,  in  whose  name  the  prosecution  is  urged, 
and  cannot  under  any  circumstances  be  admitted  at  the 
instance  of  individuals  interested  in  the  result  of  the 
trial  Pending  the  trial  of  Commander  Mackenzie,  of 
the  navy,  charged  with  murder  o)i  hoard  a  United  States 
vessel  on  the  high  seas,  an  application  was  made  by  two 
legal  gentlemen,  stating  "  that  they  had  l)een  employed 
by  the  relatives  of  one  of  the  persons,  for  the  murder 
of  whom  Commander  Mackenzie  was  then  on  trial ;  to 
attend  the  trial  and  take  part  therein,  by  examining  and 
cross-examining  the  witnesses  who  might  be  produced, 
and  proj)ounding  such  c^uestions,  and  offering  such  sug- 
gestions in  relation  to  the  proceedings  &c.,  as  they  might 
deem  necessary."  The  court,  after  matm'e  cleliljeration, 
decided  that  the  application  could  not  l)e  granted.* 

Rules  of  Proccdiire.  There  are  no  statutory  provisions 
regulating  the  manner  in  which  military  j^rosecutions 
are  to  be  conducted,  and  tlicrefore,  in  all  cases  in  ^\■hich 
forms  or  rules  of  proceeding  l)efore  courts-martial  have 
been  neither  established  by  law,  nor  fixed  by  the  cus- 
tom of  service,  the  procedure  must  be  in  accordance 
with  the  practice  which  governs  criminal  trials  in  the 
ordinary  courts  of  law. 

Chur^^es.  The  judge  advocate  being  furnislied  ^vitli 
the  charges  and  specifications  on  which  he  has  to  prose- 
cute, nmst,  from  the  information  given  him  by  tlie  ac- 
cuser, instruct  himself  in  all  the  circumstances  of  the 
case,  and  the  evidence  by  which  the  whole  particulars 

*  Trial,  pp.  8,  9. 


198  MILITARY    LAW    AND    COUKTS-MARTIAL. 

are  to  be  proved  against  the  prisoner.  Wliere  the  task 
is  delegated  to  him  of  arranging  a  prosecution  on 
grounds  defined  for  him  by  higher  authority,  it  is  strict- 
ly his  duty  to  inquire  what  persons  have  knowledge  of 
the  facts  in  issue,  and  to  what  particulars  each  of  these 
can  l>ear  testimony,  so  that  he  ma}'  not  necessarily  waste 
the  time  of  the  court  by  adducing  witnesses  who  may 
be  unable  to  furnish  any  information. 

Summoning  ^Vitne§ses.  Having  ascertained  what  wit- 
nesses w^n  be  necessary  both  for  the  prosecution  and 
defence,  the  judge  advocate  summons  them  all,  and  this 
is  done  at  the  earliest  practicable  moment,  to  avoid  any 
delay  in  the  conduct  of  the  trial ;  l^ut  with  this  limita- 
tion, that  he  shall  not  summon  any  wdtness  at  the  ex- 
])euse  of  the  United  States,  nor  any  officer  of  the  army, 
without  the  order  of  the  court,  unless  satisfied  that  his 
testimony  is  material  and  necessary  to  the  ends  of  jus- 
tice.*'* There  is  no  sj3ecific  form  of  summons  to  witnesses 
lai'd  down  either  by  law  or  regulation,  but  it  is  essen- 
tial, in  ^vhatever  terms  prepared,  that  it  be  drawn  up 
with  care  and  })recision. 

Duties.  A  judge  advocate  appears  at  a  court-martial, 
in  three  distinct  characters ;  fii'st^  As  an  officer  of  the 
court,  for  the  purpose  of  recording  its  j^roceedings,  and 
administering  the  regular  oaths ;  second,,  as  the  ad- 
viser of  the  court  in  matters  of  form  and  law;  thinly 
as  public  prosecutor.  In  the  first  of  these  characters 
he  is,  of  course,  subject  to  the  orders  of  the  court,  who 
may  direct  their  proceedings  to  be  conducted  and  re- 
corded in  any  manner  which  they  think  2)roper ;  but  in 
the  other  two  characters,  the  court  can  exercise  no  con- 

*  Revised  regulations,  p.  125. 


THE   JUDGE    ADVOCATE.  199 

trol  wliatever  over  liim,  as  in  tlie  performance  of  tliose 
duties  lie  must  be  allowed  to  act  according  to  liis  own 
judgment  and  discretion.* 

Record.  Tlie  record  of  the  court  sliall  be  clear  and 
legibly  written ;  as  far  as  practicable  without  erasures 
or  interlineations.  Tlie  pages  to  be  numbered,  witli  a 
margin  of  one  inch  on  the  left  side  of  each  page,  and  at 
the  top  of  the  odd  and  bottom  of  the  even  pages; 
through  this  last  margin  the  sheets  to  be  stitched  to- 
gether; the  documents  accompanying  the  proceedings 
to  be  noted  and  marked  in  such  manner  as  to  afford 
easy  reference.f  It  is  a  good  rule  that  all  loritten  evi- 
dence which  tends  to  prove  the  charge  ought  to  be 
recorded  in  the  place  where  it  directly  applies,  but  such 
documents  as  are  only  introduced  for  explanation  or 
illustration,  should  be  annexed  to  the  record  as  an  ap- 
pendix. 

Ill  the  interval  between  the  adjournment  on  one  day 
and  the  next  meeting  of  the  court,  it  is  the  duty  of  the 
judge  advocate  to  make  a  fair  copy  of  the  proceedings. 
This  he  continues  to  do  to  the  conclusion  of  the  trial. 
At  the  meeting  of  the  court  he  submits  the/«/r  copy  of 
the  last  day's  proceedings  to  the  presiding  officer,  who 
either  examines  it  himself,  or  requests  a  member  to  do 
so,  while  the  judge  advocate  reads  over  in  open  court, 
in  presence  of  the  accused,  the  record  he  took  of  the 
previous  day's  proceedings.  The  court  may  dispense 
with  the  reading,  but  it  is  highly  desirable  that  it 
should  be  read,  that  errors  and  omissions  in  the  fair 
copy  may  be  corrected,  and  tlie  evidence  be  more  deeply 
impressed  on  the  minds  of  the  members. 

*  Kennedy.  f  Revised  regulations,  p.  125. 


200  MILITARY    LAW    AND    COriiTS-MAETIAL. 

Reply.  After  tlie  accused  has  closed  the  defence,  the 
judge  advocate  lias  the  undoubted  ricjlit  of  reply.  This 
right  hokls,  where  the  prisoner  has  examined  witnesses, 
or  introduced  documentary  evidence,  or  has  in  his  ad- 
dress oj^ened  new  facts  upon  his  own  assertion,  or  upon 
documents  which  he  may  read  though  not  proved  in 
evidence.  AVhere  a  reply  is  desired,  the  court  Tvdll 
always  grant  the  judge  advocate  a  reasonable  time  for 
its  preparation. 

T;y"tler  observes,  that  in  complicated  cases,  in  circum- 
stantial proof,  in  cases  where  the  evidence  is  contradic- 
tory, it  is  expedient  that  the  judge  advocate  should 
arrange  and  methodize  the  body  of  the  evidence,  ajDjDly- 
ing  it  distinctly  to  the  focts  of  the  charge  (specification) 
and  bringing  home  to  the  prisoner  the  result  of  the 
proof  against  him,  balanced  with  the  evidence  of  excul- 
pation or  alleviation.  In  ordinary  cases,  a  charge  of  this 
kind  is  not  so  necessary. 

Besides  applying  the  evidence  fairly  to  each  side  of 
the  question,  the  judge  advocate  should  inform  the  court 
as  to  the  legal  bearing  of  the  evidence ;  for  it  may  be 
that  the  evidence  shall  morally  satisfy  the  minds  of  the 
com't  and  still  maybe  deficient  legally.  He  should  not 
assume  facts  to  be  proved,  tliat  should  be  left  to  the  de- 
cision of  the  court;  he  should  show  tlie  relative  bearing 
of  the  entire  evidence,  1  nit  should  give  no  opinion.  The 
members,  and  they  alone,  are,  by  their  oaths,  to  deter- 
mine according  to  the  evidence. 

Control  over  Judge  Advocate.  The  court  can  exer- 
cise no  control  over  the  judge  advocate  in  mattei*s  of 
form  and  law.  It  is  his  duty  to  instruct  and  counsel  the 
court  in  matters  of  necessary  form,  and  to  explain  such 


THE   JUDGE    ADVOCATE.  201 

points  of  law  as  may  arise  during  the  proceedings,  and 
liis  own  discretion  mnst  be  his  guide  in  determining 
when  such  a  course  may  be  seasonable  or  necessary. 

His  Opieiion.  Whenever  his  opinion  is  demanded  by 
the  court,  he  is  bound  to  give  it  freely  and  candidly, 
and  even  when  not  demanded,  it  is  his  duty  in  every 
case  to  caution  the  court  against  any  violation  of  mate- 
rial justice,  and  if  his  counsel  l)e  disregarded,  his  opin- 
ion must  be  recorded  at  length  in  the  proceedings,  to- 
gether vdth  the  action  of  the  court  thereon.  This  is 
necessary,  that  the  reviewing  authority  may  have  a  full 
and  complete  record  of  all  that  transpu'ed  upon  the 
trial,  for  his  information  and  guidance,  and  that  the 
judge  advocate  may  stand  absolved  from  all  imputa- 
tions of  failure  in  his  duty  of  giving  counsel,  and  the 
error  or  ^\Tong  committed,  be  chargeable  to  the  proper 
source. 

De  Hart  says :  "  It  thus  seems  to  be  a  well-settled 
point,  that  whenever  any  thing  occurs  in  the  progress 
of  a  trial,  which  calls  for  the  declaration  of  an  opinion 
of  the  judge  advocate,  it  is  proper  that  such  opinion 
should  be  entered  on  the  record."  Whenever  the  court, 
refuses  tp  adopt  the  opinions  of  the  judge  advocate  in- 
volving important  points  of  law  bearing  upon  the  case 
the  grounds  upon  which  their  decision  rests  should  also 
be  recorded. 

When  the  court  is  cleared  for  deliberation  on  the 
finding  and  sentence,  the  duty  of  the  judge  advocate  is 
merel}'  that  of  recorder,  and  he  abstains  from  intimating, 
in  any  manner,  his  judgment  as  to  the  guilt  or  innocence 
of  the  accused.  If,  at  this  stage  of  the  proceedings,  his 
opinion  be  asked,  it  shall  be  given,  or  should  he  notice 


202  MILITARY    LAW    AND    COURTS-MAETIAL. 

auy  irregularity  or  illegality  in  the  fiiidiug  or  any  de\da- 
tion  from  tlie  letter  of  tlie  law  in  passing  sentence,  it  is 
clearly  Lis  duty  to  point  out  the  error. 

Proceedings.  The  court  having  concluded  its  labors, 
the  record  of  the  proceedings  must  be  authenticated  by 
the  signatures  of  the  president  and  judge  advocate,  who 
shall  also  certify,  in  like  manner,  the  sentence  pro- 
nounced l)y  the  court  in  each  case. 

The  judge  advocate  shall  transmit  the  proceedings, 
without  delay,  to  the  officer  ha^dng  authority  to  confii-m 
the  sentence,  who  shall  state,  at  the  end  of  the  proceed- 
ings in  each  case,  his  decision  and  orders  thereon. 

The  original  proceedings  of  all  general  coui'ts-martial, 
after  the  decision  on  them  of  the  reviewing  authority, 
and  all  ^proceedings  that  require  the  decision  of  the 
President,  under  the  65th  and  89th  articles  of  war,  and 
copies  of  all  oi'ders  confirming  or  disapproving,  or  re- 
mitting the  sentences  of  courts-martial,  and  all  official 
communications  for  the  judge  ad\ocate  of  the  army,  will 
be  addressed  to  "  The  Adjutant-General  of  tlie  Army^ 
War  Department^''  marked  on  the  cover,  "  Judge  Advo- 
catey"" 

The  i^roceedings  of  garrison  and  regiment^^l  coui'ts- 
martial  will  be  transmitted  without  delay  by  the  garri- 
son or  regimental  commander,  to  the  department  head- 
quarters for  the  supervision  of  the  department  com- 
mander. 

By  the  original  proceedings  is  meant  the  fair  copy^ 
which  has  been  daily  submitted  for  the  inspection  of  the 
court,  and  has  been  corrected  in  its  presence. 

Time  of  Attendance.     The  certificate   of  the  judge 

*  Revised  regulations,  p.  126,  and  90tb  article  of  war. 


THE    JUDGE    ADVOCATE.  203 

advocate  shall  be  evidence  of  tlie  time  of  attendance  on 
the  court  of  the  members  and  witnesses,  and  of  the  time 
he  himself  was  necessarily  employed  in  the  duty  of  the 
court.  Of  the  time  occupied  in  travelling,  each  officer 
^\•ill  make  his  own  certificate. 

Before  Courts  of  Inquiry.  Tlie  specified  duties  of  a 
judge  advocate  before  a  court  of  incj^uiry,  are,  "as  a  re- 
corder, to  reduce  the  })roceedings  and  evidence  to 
writing ;" — in  conjunction  Avith  the  president  to  authen- 
ticate the  proceedings  by  his  signature ; — to  administer 
an  oath  to  the  members ;  and  himself  to  swear  that  he 
will  "  accurately  and  impartially  record  the  proceedings 
of  the  court  and  the  evidence  to  be  o-iven  in  the  case  in 

o 

hearing."  He  also  administers  to  the  witnesses  the  same 
oath  that  is  taken  before  a  court-martial.  He  summons 
all  witnesses  required  for  the  investigation  of  the  cir- 
cumstances, regarding  wliich  the  court  is  assembled,  and 
gives  notice  to  the  party  interested  of  the  time  and  place 
of  meetino-. 

o 

The  object  of  ti»e  court  Ijeing  mainly  to  gather  and 
methodize  information,  so  as  to  enal)le  the  convening 
authority  to  arrive  at  correct  conclusions,  it  becomes 
the  duty  of  the  judge  advocate  to  examine  the  witnesses, 
and  lend  his  exertions  to  attain  that  object,  by  a  search- 
ing and  scrutinizing  inquir}^  into  the  minutiae  of  the 
subject  ordered  to  be  investigated,  so  that  the  entire 
circumstances  of  the  case  may  l^e  laid  before  tlie  con- 
vening authority  in  a  clear  and  explicit  form. 

As  the  proceedings  of  a  court  of  inquiry^,  by  having 
the  witnesses  sworn,  partake  of  a  judicial  character,  the 
judge  advocate  must  be  considered  as  a  legal  adviser  to 
the  court,  and  he  is  therefore  bound  to  see  that  no  im- 


204  MILITARY    LAW    AND    COURTS-MARTIAL. 

proper  evidence  is  admitted,  and  to  put  tlie  court  on 
tlieir  guard  against  tlie  commission  of  legal  errors. " 

iTiode  of  Proceeding.  The  court  having  convened, 
the  judge  advocate  shall,  in  presence  of  the  accused,  if 
any,  read  the  order  constituting  the  court,  and  will  then 
ask  the  accused  if  he  has  any  objections  to  any  of  the 
members,  which  question  with  the  answer  must  be  re- 
corded. 

The  court  is  then  sivorn  by  the  judge  advocate,  and 
the  latter  is  sworn  by  the  presiding  officer. 

The  judge  advocate  now  reads  any  special  instructions 
that  may  have  been  given  to  the  court  for  their  guidance 
and  government,  and  this  act  will  also  be  recorded. 

The  coui't  having  decided,  ^\^th  closed  doors,  upon  the 
hest  mode  of  procedure,  the  doors  are  opened  and  the 
parties  recalled.  The  witnesses  are  next  examined,  and 
their  evidence  taken  down  in  the  same  manner  and 
order  as  is  observed  on  trials  by  courts-martial ;  and  a 
fair  cop])  of  the  proceedings  made  from  day  to  day, 
which  is  read  over  and  connected  at  theii*  next  meeting. 

The  business  of  the  court  having  been  concluded,  the 
record  of  the  proceedings  will  be  ai(the?Hicated  hj  the 
signatures  of  the  president  and  judge  advocate,  and  be 
transmitted  by  the  latter  to  the  authority  ordering  the 
court. 

*  De  Hart,  p.  332. 


CIIAPTEK    XIX. 

EEMARKS  ON  ARTICLES  OF  WAR. 

mutiny  or  Sedition.  "  Art.  7.  Any  officer  or  soldier 
wlio  shall  Legiii,  excite,  cause,  or  join  in  any  mutiny  or 
sedition  in  any  troop  or  company  in  the  service  of  the 
United  States,  or  in  any  party,  post,  detachment,  or 
guard,  shall  suffer  death,  or  such  other  punishment  as 
by  a  court-martial  shall  be  inflicted. 

"  Art.  8.  Any  officer,  non-commissioned  officer,  or  sol- 
dier, who,  being  present  at  any  mutiny  or  sedition,  does 
not  use  his  utmost  endeavor  to  suj)press  the  same,  or 
coming  to  the  knowledge  of  any  intended  mutiny,  does 
not,  witiiout  delay,  give  information  thereof  to  his  com- 
manding officer,  shall  be  j)unished  by  the  sentence  of  a 
court-martial  witli  death,  or  otherwise,  according  to  the 
nature  of  his  offence. 

"  Art.  9.  Any  officer  or  soldier  Avho  shall  strike  his 
supei'ior  officer,  or  draw  or  lift  uj^  any  weapon,  or  offer 
any  violence  against  him,  being  in  the  execution  of  his 
office,  on  any  pretence  whatsoever,  or  shall  disobey  any 
lawful  command  of  his  superior  officer,  shall  suffer 
death,  or  such  other  punishment  as  shall,  according  to 
the  nature  of  his  offence,  be  inflicted  upon  liim  by  the 
sentence  of  a  court-martial." 

By  mutiny  is  understood  resistance  to  lawful  military 
authority :  this  resistance  may  be  either  active  or  pas- 


206  MILITARY    LAW    AND    COURTS-MARTIAL. 

sive.  It  implies  not  only  extreme  iDsubordination,  as 
individually  resisting  by  force,  or  collectively  rising 
against  or  opposing  military  authority,  hut  a  murmur- 
ing or  muttering  against  the  exercise  of  authority,  tend- 
ing to  create  disquiet  and  dissatisfaction  in  the  ann}-. 
It  is  not,  therefore,  necessarily  an  aggregate  offence 
committed  by  many  individuals,  or  by  more  than  one. 
"  It  may  originate  and  conclude  with  a  single  person  ; 
and  be  as  complete  vdih  one  actor  in  it,  as  one  thou- 
sand."* 

By  ■sedition  is  meant  resistance  to  the  government  or 
civil  authorities,  necessarily  involving,  or  resulting  in 
insubordination  to  military  authority. 

The  cruue  of  mutiny  or  sedition  must  be  proved  by 
acts,  or  bywords  in  connection  with  acts,  for  no  one  can 
be  convicted  of  having  l)egun,  excited,  caused,  or  joined 
in  any  mutiny  or  sedit.on,  unless  it  be  proved  that  said 
crime  was  actually  committed. 

The  act  of  heg inning  any  mutiny  is  an  overt  act,  and 
the  direct  employment  of  force  against  authority,  as 
where  a  j^rivate  soldier,  when  on  guard  dut}',  sta1  )s  with 
a  bayonet  the  officer  commanding  the  said  guard ;  the 
exciting  to  any  mutiny,  though  it  may  not  insure  the 
completion  of  the  act  intended,  is  still  an  act  of  mutiny, 
as  where  an  officer  endeavors  by  words  or  gestures  to 
dissuade  the  men  from  doing  a  duty  they  are  ordered  to 
perform ;  the  causing  any  mutiny,  1  )y  agitating  the  pro- 
joriety  or  impropriety  of  the  measures  of  their  superiors, 
— such  conduct  tendhio;  to  create  discontent  amono;  the 
soldiers ;  the  joining  in  any  mutiny,  as  where  soldiers 
join,  actively,  in  any  act  of  insul)ordination  or  mutiny, 

*  Samuel,  p.  257. 


EEMAKKS    ON    ARTICLES    OF    WAR.  207 

or,  passively,  do  not  use  tlieir  utmost  endeavors  to  sup- 
press the  same,  or  coming  to  tlie  knowledge  of  any  in- 
tended mutiny,  do  not  at  once  give  information  thereof 
to  tlieii'  command  ins:  officer. 

striking  a  Superior  Ofllccr,  beings  in  the  Execution 
of  iiis  Office.  That  the  violence  offered  to  a  superior 
must  be  while  in  the  execution  of  his  office,  is  fixed  as 
an  inseparable  part  of  the  oftence,  and  must  be  proved, 
in  order  to  subject  the  accused  to  the  severe  penalty 
contemplated  by  the  article.  To  be  in  the  execution 
of  his  office  does  not  necessarily  require  the.  officer,  or 
non-commissioned  officer,  to  be  in  the  actual  performance 
of  a  prescribed  duty,  as  parade,  drill,  or  guard,  for  what- 
ever the  law,  regulations,  or  custom  of  service  require 
of  him,  that  it  is  his  duty  to  perform,  and  while  so  em- 
ployed he  is  in  the  execution  of  his  office  and  entitled  to 
the  protection  of  the  law. 

To  constitute  the  offence,  it  must  appear  that  the 
offender  was  aware  of  the  rank  or  superiority  of  the 
superior.  An  officer  may  be  in  the  execution  of  his 
office  in  plain  clothes,  and  to  prove  the  crime  in  such  a 
case  would  necessitate  the  proof,  that  the  ofl^nder,  at  the 
time,  was  aware  that  his  Aaolence  was  directed  toward 
his  superior  officer.*  When  the  charge  is  thus  fully 
made  out  by  evidence,  the  mere  act  of  drawing  or  lift- 
ing up  a  weapon  against  a  superior,  is  mutiny^  and  pun- 
ishable by  death  at  the  discretion  of  the  court. 

It  may  be  well  to  remark,  that  mutinous  conduct  is 
not  one  of  the  nominated  offences  in  the  articles  of  war, 
and  cannot  be  prosecuted  under  either  of  the  three  mu- 
tiny articles  above  quoted.     It  can  only  be  taken  cogni- 

*  Simmons,  p.  298. 


208  MILITARY    LAW    AND    COURTS-MARTIAL. 

zance  of  by  a  coui-t-martial,  wlieu,  in  terms  of  tlie  gen- 
eral article,  it  is  further  described  in  tlie  cliarge,  "  to  the 
prejudice  of  good  order  and  military  discipline." 

Disobeying^  any  L.aAvfiil  Coniinaiicl  of  his  Superior  Offi- 
cer. Disoljcdience  of  orders  is  reckoned  among  the  grav- 
est military  crimes,  and  as  such  is  made  a  penal  offence 
by  the  9th  article.  A  refusal  to  ol)ey  any  order  is  un- 
doubtedly mutiny,  although  a  failure  or  refusal  to  obey 
one,  or  two,  or  any  numl)er,  more  or  less,  of  special 
orders  for  reasons  in  each  case,  may  be  consistent  with 
a  general  submission  to  military  authority,  and  may 
argue  no  intent  to  resist  or  subvert  it. 

It  was  announced  in  orders,  by  direction  of  the 
general-in-chief,  that  under  the  9th  and  67th  articles,  the 
jurisdiction  of  the  inferior  coui'ts-martial  does  not  ex- 
tend to  cases  where  the  offence  is  specifically  charged 
as  "  disobedience  of  orders."  The  following  decision 
upon  the  same  point,  was  subsequently  made  T)y  the 
secretary  of  war.  "  The  question  is  not  clear  upon  the 
authority  of  the  text  ^^Titers.  But  I  incline  to  the 
opinion  of  the  general-in-chief  Certainly,  if  'disobe- 
dience of  orders'  means  '  disobedience  of  a  lawful  com- 
mand of  a  superior  officer  in  the  execution  of  his  office,' 
it  is  a  '  capital  case,'  and  not  triable  by  a  garrison  court, 
and  however  that  may  be,  the  order  of  the  general-in- 
chief  is  mandatory  to  garrison  commanders,  and  does,  in 
effect,  forbid  any  such  commander  to  send  any  such  case 
to  a  garrison  court,  or  to  execute  theii'  sentence  in  such 


ciiaiieiiges.     "Art.    25.    No  officer   or   soldier   shall 
leno-e  to  another  officer  or  soldiei 

o 
*  G.  0.,  War  Department.  November  1st,  1858. 


send  a  challenge  to  another  officer  or  soldier,  to  fight  a 


EEMAEKS    ON   AETICLES    OF   WAR.  209 

duel,  or  accept  a  cliallenge  if  sent,  upon  pain,  if  a  com- 
missioned officer,  of  being  cashiered ;  if  a  non-commis- 
sioned officer  or  soldier,  of  suffering  corporeal  punish- 
ment, at  the  discretion  of  a  coui't-martial. 

"  Art.  28.  Any  officer  or  soldier  who  shall  up 
braid  another  for  refusins:  a  challensre,  shall  himself  be 
punished  as  a  challenger ;  and  all  officers  and  soldiers 
are  hereby  discharged  from  any  disgrace  or  opinion  of 
disadvantage  which  might  arise  from  theii'  having  re- 
fused to  accept  of  challenges,  as  they  will  only  have 
acted  in  obedience  to  the  laws,  and  done  their  duty  as 
good  soldiers  who  subject  themselves  to  discipline." 

In  a  recent  case.  Colonel  S.  was  brought  to  trial  be- 
fore a  general  court-martial,  charged  with  \dolation  of 
the  above-quoted  articles  of  war. 

1st.  In  sending  a  challenge  to  General  II.  to  fight  a 
duel,  in  words  as  follows : 

"Washington,  D.  C,  Febriiarij  15,  1858. 
"  SiE  :  As  more  than  twenty-four  hours  have  passed, 
since  my  note  to  you  of  yesterday,  I  have  a  right  to 
presume  that  you  do  not  intend  to  answer  it ;  I  have 
therefore  to  invite  you  to  leave  this  city  with  me  to- 
morrow morning,  to  go  to  any  place  you  may  designate. 
I  send  this  note  privately  to  avoid  committing  any 
friend  as  long  as  possible.  An  early  answer  is  re- 
quested. 

"  I  am,  with  due  respect, 

"E.  V.  S , 

"  Col.  \st  Cwvalry. 

"  Brevet  Brig.-Gen.  W.  S.  H , 

"  Col  2d  Dragoons:' 
14 


210  MILITARY    LAW   AND    COUKTS-JIARTIAL. 

2d.  In  upbraiding  General  H.  for  refusing  to  fight  a 
duel,  in  words  as  follows : 

"  WASHmGTON,  D.  C,  Fthruary^  16,  1858. 
"  SiE :  I  received  witli  great  surprise  your  note  of  last 
evening,  and  liave  only  to  say  to  you ;  that  a  man  who 
could  insult  a  brother  officer  from  an  official  covert,  and 
afterwards  refuse  to  apologize,  or  to  give  him  that  satis- 
faction which  he  had  a  right  to  demand,  is  utterly  un- 
worthy of  any  farther  notice  from  me. 


"  I  am,  tfec, 


"E.  Y.  S- 


"  Brevet  Brig.  Gen.  W.  S.  H "  Col.  \st  Cavalry. 

"  Col.  U  Bragoonsr 

The  verdict  of  the  court  was  an  acquittal  of  both 
charges  and  their  specifications. 

The  secretaiy  of  war,  reviemng  the  proceedings, 
says: 

"  Colonel  S 's  note  of  the  ir)th  February  is  a  chal- 
lenge within  the  meaning  of  the  article  of  war.  The 
military  authorities,  and  the  decisions  of  courts-martial 
are  clear  in  this  regard.  They  lay  down,  what  is  indeed 
the  necessary  doctrine  to  give  eflfect  to  the  law,  that 
''  no  particular  phraseology^  tw  set  form  is  necessary  to  a 
challenge;'^  nor  ^ a  formal  invitation  to  fight;''  but  '« 
mere  hint  or  suggestion^  is  sufficient,  and  even  '  such  a 
defiance  as  casts  the  burden  on  the  other  party.^  As 
challenges  are  in  violation  of  law,  ingenuity  is  not  uncom- 
monly exercised  to  avoid  a  plain  expros^sion  of  their  pur- 
pose. But  these  are  artifices  to  defeat  the  law,  which 
courts  of  law  will  never  favor.     And  when  the  meaning 


EEMAEKS    01^    ARTICLES    OF   WAR.  211 

is  SO  clear  as  to  be  intelligible  to  the  party  who  receives 
the  challenge,  it  answers  its  purpose,  and  is  intelligible 
to  the  tribunal  which  tries  it.  In  this  case,  however, 
the  challenge  is  plainly  expressed ;  even  if  it  were  not 
conclusively  interpreted  by  the  rest  of  the  correspon- 
dence, and  expressly  as  '  a  demand  of  satisfaction^ 

"  The  doctrine  of  the  findings  in  this  case,  would  ren- 
der the  article  of  war  void  and  inoperative,  by  indicat- 
ing a  mode  of  doing  mthout  breach  of  the  law  what 
it  is  the  exact  purpose  of  the  law  to  forbid. 

"  A  rigid  enforcement  of  strict  discij^line  in  the  army 
is  the  most  essential  requisite  for  its  honor  and  efficiency. 
If  the  bonds  of  discipline  are  loosened,  it  is  only  a  ques- 
tion of  time  when  the  army  will  become  a  mob,  and 
public  opinion  will  ascribe  to  it  that  character,  even  be- 
fore it  would  be  fairly  entitled  to  it."* 

OflTcnces  agaiiisitt  Citizens,  &c.  "  Art.  32,  Every  officer 
commanding  in  quarters,  gamsons,  or  on  the  march, 
shall  keejD  good  6rder,  and,  to  the  utmost  of  his 
power,  redress  all  abuses  or  disorders,  which  may  be 
committed  by  any  officer  or  soldier  under  his  command ; 
if,  upon  complaint  made  to  him  of  officers  or  soldiers 
beating  or  otherwise  ill-treating  any  person,  or  disturb- 
ing fairs  or  markets,  or  of  committing  any  kind  of  riots, 
to  the  disquieting  of  the  citizens  of  the  United  States, 
he,  the  said  commander,  who  shall  refuse  or  omit  to  see 
justice  done  to  the  offender  or  offenders,  and  reparation 
made  to  the  party  or  parties  injured,  as  far  as  part  of 
the  offender's  pay  shall  enable  him  or  them,  shall,  upon 
proof  thereof,  be  cashiered,  or  otherwise  punished,  as  a 
general  court-martial  shall  direct. 

*  G.  0.  No.  2,  War  Department.  March  IGth.  1858. 


212  MILITARY    LAW    AND    COURTS-MAETIAL. 

"  Art.  33.  When  any  commissioned  officer  or  soldier 
shall  be  accused  of  a  capital  crime,  or  of  having  used 
violence,  or  committed  any  offence  against  the  person  or 
property  of  any  citizen  of  any  of  the  United  States,  such 
as  is  j)unishal>le  by  the  known  laws  of  the  land,  the 
commanding  officer  and  officers  of  eveiy  regiment,  troop, 
or  company,  to  which  the  person  or  persons  so  accused 
shall  belong,  are  hereby  required,  upon  application  duly 
made  by,  or  in  behalf  of  the  j^arty  or  parties  injui'ed,  to 
use  their  utmost  endeavors  to  deliver  over  such  accused 
person  or  persons  to  the  civil  magistrate,  and  likewise 
to  be  aiding  and  assisting  to  the  officers  of  justice  in 
apprehending  and  securing  the  person  or  persons  so 
accused,  in  order  to  bring  him  or  them  to  trial.  If  any 
commanding  officer  or  officers  shall  "^^-ilfully  neglect,  or 
shall  refuse,  upon  the  application  aforesaid,  to  deliver 
over  such  accused  person  or  persons  to  the  ci%41  magis- 
trates, or  to  be,  aiding  and  assisting  to  the  officers  of  jus- 
tice in  apprehending  such  person  or  persons,  the  officer 
or  officers  so  offending  shall  be  cashiered." 

The  32d  article  authorizes  and  requires  every  com- 
manding officer  to  redress  all  abuses  or  disorders  which 
may  be  committed  by  any  officer  or  soldier  of  his  com- 
mand, to  the  disquieting  of  the  citizens  of  the  United 
States. 

By  the  33d  article,  it  is  made  a  condition  precedent 
to  his  being  delivered  up,  that  the  person  called  for 
shall  be  accused  of  some  offence  such  as  is  "  punishable 
by  the  known  laws  of  the  land."  To  the  men  under 
his  command,  so  long  as  they  continue  to  discharge  their 
duties,  the  superior  owes  a  duty  of  protection,  which  is 
fii'st  in  point  of  time  and  highest  in  obligation,  and  he 


EEMAEKS    ON    ARTICLES    OF    WAR.  213 

has  no  right  to  withdraw  it  except  as  specified  in  the 
article.  A  mere  demand  based  upon  the  fact  that  an 
offence  has  been  committed  against  the  person  or  prop- 
erty of  a  citizen,  is  not  sufficient.  The  offence  must  be 
specified,  and  it  is  his  duty  to  satisfy  himself  by  a  care- 
ful scrutiny  of  the  circumstances,  that  the  offence  is  one 
contemplated  by  the  article.  He  should  be  furnished 
A\dth  the  specific  charge,  and  the  name  of  the  injured 
party ;  and  an  affidavit  should  accompany  the  demand, 
giving  all  the  information  necessary  to  a  fall  compre- 
hension of  the  case. 

The  application  must  be  made  "  by,  or  in  behalf  of 
the  party  or  parties  injured."  In  the  case  of  murder, 
the  party  injured  cannot  act.  In  his  behalf,  or  in  that  of 
the  society  injured  in  his  person,  it  is  the  right  of  any 
and  every  citizen  to  move  the  courts  of  the  country  to 
a2')ply  the  laws  of  the  land  to  the  criminal,  and  a  com- 
manding officer  would  scarcely  hesitate,  in  such  case,  to 
surrender  the  accused  to  the  civil  authorities. 

Under  the  supj^tosition  that  the  act  is  internal  to  the 
arm}',  as  that  an  officer  on  duty  kills  a  superior  officer, 
the  act,  though  mutiny  by  military  law,  would  be 
murder  by  the  ordinary  law,  and  as  such  be  triable  by 
a  civil  court.  "There  the  whole  society  is  a  party  in- 
jured, and  the  public  prosecutor  may  justly  demand 
that  the  criminal  shall  be  held  amenaljle  to  the  aggrieved 
majesty  of  the  law  of  the  land,  either  with  or  without  a 
technical  conformity  of  proceeding  to  the  letter  of  the 
articles  of  war."* 

Embezzlement.  Art.  39.  Every  officer,  wlio  shall  be 
convicted  before  a  court-martial,  of  having  embezzled, 

*  Opinions,  April  7  th,  1854. 


214  MILITARY    LAW    AND    COUKTS-MARTIAL. 

or  misapplied,  any  money  witli  whicli  lie  may  have  been 
intrusted,  for  the  payment  of  the  men  under  his  com- 
mand, or  for  enlisting  men  into  the  service,  or  for  other 
pui'poses,  if  a  commissioned  officer,  shall  be  cashiered, 
and  compelled  to  refund  the  money ;  if  a  non-commis- 
sioned  officer,  shall  be  reduced  to  the  ranks,  be  put  under 
stoppages  until  the  money  be  made  good,  and  suffer 
such  corporeal  punishment  as  such  court-martial  shaU 
dii-ect. 

In  the  case  of  Captain  T.  J.  who  was  tried  before  a 
general  court-martial,  on  the  charge  of  "  embezzlement  of 
public  money  intrusted  to  liim^^''  the  court  found  him 
guilty  of  portions  of  each  of  the  first  two  specifications, 
but  attached  no  criminality  thereto,  and  therefore  acquit- 
ted him  of  the  charge. 

The  follomng  were  the  orders  thereon  from  the  War 
Department* 

"  The  verdict  of  the  1st  and  2d  specifications  to  the 
1st  charge  does  not  express  the  meaning  of  the  court. 
For  surely  a  coui't  sworn  to  administer  the  law  cannot 
mean  to  return  a  verdict  which  is  a  pure  and  simple 
contradiction  of  the  law.  The  court  cannot  have  meant 
to  declare  that  it  is  not  embezzlement  to  render  a  fiilse 
voucher  for  payment  of  money  not  paid  when  the  law 
declares  that  it  is  embezzlement.  The  court  must  there- 
fore have  meant  that  the  accused  is  not  guilty  of  the 
facts  charged  in  the  legal  sense ;  that  he  did  not  w^ilfully 
and  designedly  render  a  false  voucher.  That  this  is 
what  the  verdict  meant  would  also  appear  from  the  rul- 
ing on  the  plea  in  bar,  and  from  the  evidence  on  the 
record  to  the  facts.     The  accused  pleaded,  with  other 

*  G.  0.  No.  1.  War  Department,  January  ISth,  18GL 


EEMAEKS    ON    ARTICLES    OF    WAK.  215 

matters  in  bar,  that  tlie  act  of  Congress  of  August  G, 
18-46,  defining  embezzlement,  is  the  law  in  tlie  trial  of 
indictments  in  the  civil  courts  of  the  United  States,  but 
is  not  the  law  of  eml^ezzlement  in  their  courts-martial. 
The  court,  properly,  overruled  the  plea.  And  it  is  in 
place  here  to  remark,  that  the  rendering  of  false  vouch- 
ers was  always  evidence  of  embezzlement  at  common 
law,  and  the  effect  of  the  recent  statute,  upon  that  point, 
is  merely  to  relieve  the  prosecution  of  the  necessity  of 
ascertaining  the  exact  amount  overcharged  and  embez- 
zled by  making  any  overcharge  an  embezzlement  of  the 
whole  amount  of  the  voucher.  The  evidence  on  the 
record  which  also  goes  to  explain  the  verdict,  is  this : 
testimony  for  the  defence  was  l^rought  to  show  that  the 
accused  gave  his  clerk  for  the  claimant  a  check  for  $2,000, 
and  that  the  account  was  made  up  by  the  clerk  and 
receipted  by  the  claimant  for  a  larger  amount  than  paid 
"v^dthout  the  knowledsre  of  the  accused.     If  this  evidence 

o 

satisfied  the  court,  they  ought  to  have  rendered  a  general 
verdict  of  not  guilty ;  or  a  special  verdict  explaining  the 
facts  in  their  legal  relation,  and  not  the  verdict  they 
have  rendered,  finding  the  facts  as  charged,  and  rejecting 
and  denying  the  necessary  and  legal  conclusion  from 
them. 

"The  record  discloses  very  extraordinary  errors  in  the 
proceedings.  The  prosecution  oficred  in  evidence  the 
receipts  designated  in  the  specification  to  the  2d  charge, 
to  which  the  defence  objected  '  on  the  ground  that  they 
were  part  of,  and  attached  to  the  proceedings  of  the 
court  of  inquiry,"  and  the  court  sustained  the  objection. 
The  prosecution  then  ofiVred  parole  evid(,*nce  of  their 
contents;  the  defence  objected,  and  the  court  overruled 


216  MILITAEY   LAW   AND    COURTS-MARTIAL. 

the  objection.  In  these  decisions  the  court  contrived  to 
vioLite  the  plainest  rules  of  e\ddence.  It  is  really  unac- 
countable how  a  court  could  conceive  that  evidence, 
documentary  or  oral,  should  be  rejected  in  one  coiul; 
because  it  had  been  admitted  in  another  court,  or  that 
a  document  being  incompetent,  its  contents  by  parole 
could  be  admitted. 

"Again;  the  voucher  for  $2,452.70  alleged  to  be 
overcharged  being  in  proof  for  the  prosecution,  and  for 
the  defence  that  $2,000  had  been  paid,  the  prosecution 
asked  ivhat  part  of  that  payment  was  on  account  of  that 
voucher.  The  defence  objected.  That  the  inc^uiry  was 
pertinent,  that  it  went  precisely  to  the  gist  of  the  mat- 
ter on  trial,  would  seem  to  be  obvious  ;  and,  moreover, 
the  prosecution  explained,  that  the  claimant  had,  in 
fact,  signed  other  vouchers,  and  the  point  was  how 
much  had  been  paid  on  that  voucher.  Nevertheless  the 
court  sustained  the  objection  and  ruled  out  the  inquiry. 
Then  the  prosecution  asked  if  the  icliole  of  the  $2,000 
ic as  paid  on  that  voucher.  The  defence  objected  (what 
was  clear  enough),  that  that  was  matter  just  ruled  out. 
But  now  the  coui't  overrule  the  objection  and  admit  the 
answer,  and  allow  it  to  be  shown  that  ''the  whoW  of 
the  $2,000  was  not  paid  on  that  voucher,  though  they 
would  not  allow  it  to  be  sho^vn  '  what  pari)  of  it  was  so 
paid ;  and  conse(piently  what  part  of  the  voucher  had 
been  paid,  and  that  material  inquiry  they  left  as  much 
in  the  dark  as  they  found  it. 

"  Errors  such  as  these  are  inexcusable. 

"  This  record  presents,  however,  a  much  more  import- 
ant subject  for  the  animadversion  of  the  department  and 
the  information  of  the  army.     This  accused  and  some 


REMARKS   ON   ARTICLES    OF    WAR,  21*7 

other  disbursing  officers  have  been  charged  with  render- 
ing vouchers  of  payment,  when,  in  fact,  the  payments 
had  not  been  made.  Their  defence  is,  that  having  no 
public  money,  they  had  given  the  public  creditor,  for 
indispensable  supplies  or  services,  certificates  of  public 
debt,  or  pledged  their  personal  credit,  and  then  took  his 
receipt  to  draw  the  money  on  it  and  apply  it  according 
to  the  liabilities  so  incurred.  It  is  sufficient  to  say  that 
the  law  positively  forbids  such  vouchers ;  that  it  makes 
it  felony  to  render  a  voucher  of  money  paid  when  it  is 
not  paid ;  that  the  proper  mode  of  drawing  public 
money  for  disbursements  is  by  requisition  and  not  on 
false  vouchers ;  and  that  the  department  can  accept  no 
excuse  for  a  practice  which,  with  whatever  good  inten- 
tions, is  forbid  by  law,  and  tends  to  discredit  all  public 
accounts." 

Drunk  on  Duty.  "  Art.  45.  Any  commissioned  officer 
who  shall  be  found  drunk  on  his  guard,  party,  or  other 
duty,  shall  be  cashiered.  Any  non-commissioned  officer 
or  soldier  so  offending  shall  suffer  such  corporeal  pun- 
is. iment  as  shall  be  inflicted  by  the  sentence  of  a  court- 
martial." 

The  following  was  the  decision  of  the  AVar  Depart- 
ment in  the  cases  of  Captain  S.  and  Lieutenant  M.,  who 
were  tried  on  the  charge  of  "  Drinikenness  on  dutyy 

"  These  cases  raise  the  question  whether  the  parties 
on  trial  were  on  duty  in  the  sense  of  the  45th  article  of 
war.  In  one  sense,  '  on  duty'  is  in  contradistinction  to 
'  on  leave  of  absence.'  But  the  expression  aj)pears  to 
have  a  narro\ver  meanini;^  in  the  45th  article  of  war. 
The  old  la^v^  in  this  matter  ran  in  these  words :  '  guard, 
party,  or  other  duty  under  arms.'     The  omission  of  the 


218  MILITARY    LAW    AKD    COURTS-MAETIAL. 

words  '  under  arms'  from  tlie  present  law,  ^vitli  intention 
to  include  all  descriptions  and  circumstances  of  duty, 
yet  still  leaves  excepted  those  other  occasions  in  camp 
or  garrison,  when  the  officer  is,  in  the  ordinary  language 
of  service,  'off  duty.'  It  is  unnecessary  to  add  that 
drunkenness  off  duty,  according  to  the  circumstances, 
may  be  cognizable  by  a  coui't-martial,  but  not  under  the 
45th  article  of  war.  What  then  are  the  conditions 
which  bring  the  offence  under  this  article  ?  It  is  diffi- 
cult to  make  a  general  definition  which  shall  be  precise 
and  accurate.  The  law  leaves  it,  as  other  general  words 
of  statutes,  to  judicial  interpretation  in  the  particular 
case.  In  one  of  these  cases  the  coui't  find  that  an  officer, 
drunk  at  a  dancing  party,  when  engaged  in  no  act  of 
duty,  and  called  on  for  the  performance  of  no  duty,  was 
drunk  on  duty,  because  it  was  during  his  tour  as  officer 
of  the  day,  and  the  same  court  find,  in  the  other  case, 
that  an  officer  is  not  drunk  on  duty,  when  being  sent  to 
execute  a  duty  requii'ing  his  attention  jfrom  day  to  day, 
he  gets  di'unk  after  he  has  commenced  it,  and  is  thus 
rendered  unable  to  continue  it ;  or,  when  having  receiv- 
ed an  urgent  and  peremptory  order,  calling  for  immedi- 
ate execution,  he  is  unable  to  execute  it,  l)ecause  of  his 
drunkenness.  The  department  holds  that  all  these  are 
cases  of  drunkenness  on  duty."* 

And  in  a  subsequent  case  the  following  were  the 
orders  thereon : 

"  The  court  suggest  no  explanation  of  the  distinction 
they  take  that  the  accused  was  Ulrunh  in  the  actual 
execution  of  his-  office^  but  not  ^dru/ih  on  dutij  in  the 
meaning  of  the  article  of  war.     The  department  cannot 

*  G.  0.  No.  7,  War  Department,  June  18th,  1856. 


I 


REMARKS    ON    ARTICLES    OF    WAR.  219 

discover  any  just  ground  for  tlie  distinction,  wliicli  is 
even  expressed  by  a  contradiction.  Tlie  article  of  war 
must  be  taken  to  use  its  words  in  tlieir  plain  meaning. 
If  it  be  tbe  idea  of  tlie  court,  tliat  because  certain  duties 
are  specified  in  the  article,  its  purview  is  limited  to 
tliose  and  like  duties,  tliey  impose  a  restriction  on  tlie 
general  Avords  that  follow  the  specification,  which  the 
words  themselves  do  not  carry,  and  which  is  inconsist- 
ent vdth  the  policy  and  history  of  the  statute.  If  by 
specifying  '  guard  or  party,'  only  like  duties  of  special 
detail  are  meant,  the  law  is  greatly  defective,  and  dis- 
regards the  most  important  occasions  of  military  service, 
where  the  whole  are  under  arms,  as  parade,  review,  drill, 
or  battle.  The  former  statute  specified  '  guard,  party, 
or  other  duty  under  arms.'  The  omission  of  the  words 
'  under  arms,'  removed  one  restriction  without  introduc- 
ing a  new  one.  The  specification  and  the  general  ex- 
pression each  have  their  appropriate  office.  For  examj)le, 
a  case  specified  is  that  of  an  officer  of  the  guard,  during 
his  tour,  even  when  engaged  in  no  act  of  duty  ;  and  the 
general  words  provide  for  all  actual  occasions  of  duty. 
The  construction  of  this  article  of  war  promulgated  from 
the  War  Department  in  general  order  No.  7,  1856,  is 
here  affirmed;  also  the  rule  announced  in  that  order- 
and  in  general  order  No.  8,  of  that  year,  to  the  effect, 
that  where  a  charge  is  laid  expresshj  and  exclusively 
under  a  particular  article,  the  finding  of  the  court  is 
confined  to  that  article. 

"  The  court  refused  to  admit  on  their  record  an  argu- 
ment of  the  judge  advocate,  objecting  to  an  apj^lication 
by  the  defence  for  delay.  It  was  the  duty  of  the  judge 
advocate  to  make  the  objection,  and  the  argument  by 


220  JIILITARY    LAW   AND    COURTS-MAETIAL. 

wliicli  lie  sustained  it  was  very  proper.  It  was  a  part 
of  the  proceedings  wliicli  ought  to  have  been  entered  on 
their  record."* 

Corresponding  witli  the  Enemy.  "Art.  57.  Whosoever 
shall  be  convicted  of  holding  correspondence  "with,  or 
giving  intelligence  to  the  enemy,  either  directly  or  indi- 
rectly, shall  suffer  death,  or  such  other  j^unisliment  as 
shall  be  ordered  by  the  sentence  of  a  court-martial." 

By  the  57th  article  of  the  act  of  Congress  entitled 
An  Act  for  establishing  Rules  and  Articles  for  the  gov- 
ernment of  the  Armies  of  the  United  States,  approved 
April  10, 1806,  "holding  correspondence  with,  or  giving 
intelligence  to  the  enemy,  either  directly  or  indirectly," 
is  made  punishal)le  by  death,  or  such  other  punishment 
as  shall  be  ordered  by  the  sentence  of  a  court -mai-tial. 
Public  safety  requii^es  strict  enforcement  of  this  article. 
It  is  therefore  ordered  that  all  correspondence  and  com- 
munication, verbally  or  by  writing,  printing  or  tele- 
graphing, respecting  oj^erations  of  the  army  or  military 
movements  on  land  or  water,  or  respecting  the  troops, 
camps,  arsenals,  intrenchments,  or  military  affairs,  within 
the  several  military  districts,  1)y  which  intelligence  shall 
be,  directly  or  indirectly,  given  to  the  enemy,  without 
the  authority  and  sanction  of  the  general  in  command, 
be  and  the  same  are  absolutely  prohibited,  and  from 
and  after  the  date  of  this  order  persons  violating  the 
same  mil  be  proceeded  against  under  the  57th  article 
of  war.f 

Conduct  Uiibccomiug  an  Offlcer  and  a  Gcutlcinan. 
"Art.  83.  Any  commissioned  officer  c-onvicted  before  a 

*  G.  0.  No.  5,  "War  Department.  May  23d,  1857. 

f  G.  0.  No.  67,  War  Department,  August  2Gth,  1861. 


EEMAEKS    ON    AETICLES    OF    WAE.  221 

general  court-martial  of  conduct  unbecoming  an  officer 
and  a  gentleman,  sliall  be  dismissed  the  service." 

In  the  case  of  an  assistant  surgeon  of  the  army,  who 
was  put  upon  his  trial,  charged  with  "  conduct  tmhecom- 
ing  an  officer  and  a  gentleman^^  the  following  orders 
were  issued  by  the  secretary  of  war : 

"  When  the  proceedings  in  this  case  were  first 
submitted  to  the  dei^artment,  it  seemed  to  it  that  the 
finding  of  the  court  on  the  first  charge  was  inconsistent 
^vith  theii-  finding  on  the  specification  to  that  charge, 
and  in  order  to  afibrd  the  court  an  opportunity  of  re- 
considering it,  the  case  was  remanded  to  them.  They 
have,  however,  thought  proper  to  adhere  to  their  former 
decision.  As  the  matter  is  altogether  one  of  opinion, 
the  dej^artment  will  not  interfere  with  that  of  the  court. 
It  deems  it  proper,  however,  with  reference  to  cases  that 
may  hereafter  arise,  to  make  kno^vn  its  views  on  the 
83d  article  of  war,  particularly  as  it  appears  that  the 
court  have  not  only  misconceived  the  meaning  and  in- 
tent of  the  article,  but  j^erhaps  its  language. 

"The  court,  in  assigning  its  reasons  for  not  applying 
the  article  to  this  case,  say,  that  the  conduct  of  the  ac. 
cused  'was  not  of  that  enormity  (scandalous  and  in- 
famous) which  was  contemplated  by  the  article  in  ques- 
tion— such  as  degrades  a  man  from  the  association  of 
gentlemen,  <fec.' 

"  From  these  expressions  the  court  were  evidently  of 
opinion  that  a  party  cannot  be  convicted  under  the  83d 
article  of  war,  unless  his  conduct  should  be  scandalous 
and  infamous.  Such  is  not  the  opinion  of  the  depart- 
ment. The  .words  '  scandalous  and  infamous '  are  not 
to  be  found  in  the  83d  article.     On  the  contrary,  those 


222  MILITARY    LAW   AND    COURTS-MARTIAL. 

words  were  found  in  tlie  old  rules  and  articles  of  war, 
as  enacted  in  1776,  and  revised  in  1786,  in  tlie  article  to 
which  the  83d  of  the  act  now  in  force  corresponds ;  and 
they  were  dropped  at  the  revision  by  Congress  in  1806, 
when  the  existing  law  for  the  government  of  the  army 
was  established.  It  cannot  be  doubted  that  this  change 
was  designed.  It  is  therefore  equivalent  to  a  declara- 
tion by  Congress  that  it  should  no  longer  be  necessary 
in  order  to  bring  an  officer  within  the  scope  of  that  ar- 
ticle that  the  act  charged  should  be  'scandalous  and 
infamous,'  j^ro^^ded  it  were  '  unbecoming  an  officer  and 
a  gentleman.'  Nevertheless  the  court  have  referred  to 
these  words  as  if  they  formed  a  j^art  of  the  existing 
law. 

"  An  officer  of  the  highest  merit  may,  from  indiscretion 
or  thoughtlessness,  or  fi'om  momentary  excitement,  do 
an  act  which  all  right-minded  persons  would  consider 
as  highly  unbecoming  a  gentleman,  and  yet  if  it  in- 
volved nothing  dishonorable  or  morally  A^Tong,  he  would 
not  thereby  forfeit  his  character  as  a  gentleman. 

"  Assuming  the  facts  found  by  the  court  to  be  true, 
the  attack  by  Dr.  S.  upon  Lieutenant  S.  was  attended 
with  many  aggravating  circumstances  which  distinguish 
it  fi-om  an  ordinary  assault  and  battery.  The  court 
have  found  that  it  was  premeditated  and  '  without  good 
and  sufficient  cause;'  that  Dr.  S.  struck  Lieutenant  S. 
'  whilst  he  was  looking  in  the  opposite  direction,  and 
not  prepared  for  an  assault,'  and  this  in  the  *  Aaew  of 
ladies,  citizens,  and  soldiers.' 

"  Conduct  like  this  would  be  considered  highly  repre- 
hensible if  conmiitted  by  any  one  in  civil  life;  and  the 
department  does  not  consider  that  either  the  character 


I 


EEMAEKS    ON    ARTICLES    OF    WAR.  223 

or  the  interests  of  the  army  would  be  promoted  by 
lowering  tlie  standard  of  propriety  in  the  service,  and 
converting  conduct  improper  in  itself — and  whether 
committed  by  an  officer  or  by  any  one  else,  into  a  mere 
breach  of  military  discipline. 

"The  court  may  possibly  have  considered  that  the 
punishment  prescribed  by  the  83d  article  was  dispro- 
portioned  to  the  offence  committed  by  Dr.  S.,  but  that 
question  was  not  submitted  to  them.  The  law  in  this 
case  affixes  the  punishment,  and  it  is  the  province  of 
the  revising  power,  and  not  that  of  the  court,  to  miti- 
gate it  according  to  circumstances."* 

*  War  Department,  December  11th,  1852. 


CHAPTER  XX. 

OF    EVIDENCE. 

It  has  been  laid  down  as  an  indisputable  principle 
that  whenever  a  legislative  act  erects  a  new  judica 
ture,  without  prescribing  any  particular  rules  of  evi- 
dence to  it,  the  common  law  will  supply  its  own  rules, 
from  which  it  will  not  allow  such  newlv  erected  court 
to  depart.  The  rules  of  evidence,  then,  that  obtain  in 
the  criminal  courts  of  the  country,  must  be  the  guides 
for  courts-martial — the  end  sought  for  being  truth, 
these  rules  laid  down  for  the  attainment  of  that  end 
must  be  intrinsically  the  same  in  both  cases.  These 
rules  constitute  the  law  of  evidence,  and  involve  the 
quality,  admissibility,  and  effect  of  evidence,  and  its  ap- 
plication to  the  j)urposes  of  truth. 

Evidence  is  that  wMch,  exclusive  of  mere  argument, 
is  legally  offered  to  a  court-martial,  for  the  purpose  of 
enabling  them  to  arrive  at  the  truth  in  any  matter  sub- 
mitted to  their  determination. 

Evidence  is  of  two  kinds :  Parol  Evidence,  consisting 
of  the  viva  voce  examination  of  witnesses,  and  Written 

Evidence. 

All  evidence  may  be  divided  into  direct  or  positive 
evidence,  and  indirect  or  presumptive  evidence. 

Direct  or  Positive  Evidence  is  the  testunony  derived 
from  those  who  had  actual  knowledge  of  the  principal 
or  disputed  point. 


OF    EVIDE^^CE.  225 

Indirect  or  Presiiniptivc  Evidence  is  wlicre  an  infer- 
ence is  made  as  to  tlie  trutli  of  the  disputed  fact,  from 
collateral  facts  ascertained  by  competent  means.  It  is 
an  act  of  reasoning. 

Proof  is  where  the  evidence  submitted,  is  sufficient 
to  produce  a  conviction  of  the  truth  of  the  facts  to  be 
established. 

Proof  may  be  either  positive,  or  presumptive. 

Positive  Proof  arises  from  direct  evidence,  which  if 
true,  establishes  or  overthrows  a  fact  immediately  in 
question. 

Presumptive  Proof  arises  from  presumptive  evidence, 
that  is,  evidence  which  directly  proves  some  fact,  the 
truth  of  which  indirectly  proves  or  disproves  some  other 
fact  which  is  immediately  the  subject  of  investigation. 

The  parties  to  a  trial  are  not  permitted  to  adduce  every 
description  of  evidence  which,  according  to  their  own 
notions,  may  be  supposed  to  elucidate  the  matter  in 
issue ;  if  such  a  latitude  were  j^ermitted,  evidence  might 
be  often  brought  forward  which  would  lead  rather  to 
error  than  to  truth,  the  attention  of  the  court  might  be 
diverted  by  the  introduction  of  irrelevant  or  imma- 
terial e^-idence,  and  the  investigation  extended  to  a  most 
inconvenient  length.  In  order  to  guard  against  these 
evils,  certain  rules  for  limiting  and  regulating  the  ad- 
missibility of  evidence  have  been  established  from  time 
to  time.* 

Admissibility  of  Evidence.  It  is  the  province  of  the 
court  to  decide  all  questions  on  the  admissibility  of 
evidence.  Whether  there  is  any  evidence,  is  a  question 
for  the  court  as  judge,  but  whether  the  evidence  is  suf- 

*  1  Phillipps,  3 ;  Simmons,  434. 

15 


226  MILITARY   LAW    AND    COUETS-MAETIAL. 

fidelity  is  a  question  for  tlie  court  as  jury  to  determine ; 
and  this  rule  applies  to  the  admissibility  of  every  kind 
of  evidence,  A\Titten  as  well  as  oral. 

There  are  certain  conditions  precedent  which  are  re- 
quired to  be  observed,  before  evidence  is  to  be  submit- 
ted for  the  consideration  of  the  court.  Thus  an  oath 
or  its  equivalent,  and  competency  in  a  -witness,  are  con- 
ditions precedent  to  admitting  viva  voce  evidence — the 
burden  of  making  out  that  a  witness  is  incomj^etent, 
lies  on  the  party  who  makes  the  objection ; — so  also  is 
the  fact  of  a  person's  expectation  of  immediate  death, 
previously  to  the  admission  of  proof  of  his  dying  dec- 
larations; and  the  proof  of  requisite  search,  2)re\*ious- 
ly  to  the  admission  of  secondary  evidence  of  lost  writ- 
ings. 

The  law  excludes  some  descriptions  of  evidence  as 
wholly  improper  to  be  submitted  to  the  jury,  and  rejects 
the  testimony  of  certain  persons,  who  are  on  this  account 
teiTued  incompetent  witnesses.  The  rules  resj^ecting 
these  are  chiefly  founded  on  the  consideration,  that,  in 
the  generality  of  instances,  the  testimony  of  those  wit- 
nesses would  mislead  the  court,  and  it  is  obvious  that 
the  proj^riety  of  the  exclusion  in  each  particular  case, 
must  be  judged  of,  according  to  the  constitution  of  the 
tribunal  to  which  the  evidence  is  submitted,  and  wdth 
reference  to  the  mode  of  proceeding  before  it.* 

incoinpefciiey  of  Witnesses.  There  are  foiu'  cases  in 
which  a  witness  is  deemed  inconqietent  to  give  evi- 
dence : 

1st.  When  a  witness  labors  under  a  defect  of  under- 
standing. 

*  1  Phillipps,  5-7. 


OF    EVIDEIfCE.  227 

2(1.  AVlien,  from  defect  of  religious  principle,  lie  does 
not  acknowledge  the  sanction  of  an  oath. 

3d.  When  his  character  is  infamous  in  consequence 
of  a  conviction  of  some  crime. 

4th.  When  he  is  interested,  to  any  extent,  in  the 
matter  in  issue. 

The  last  tioo  causes  of  incompetency  have,  from  time 
to  time,  and  especially  of  late  years,  been  very  much 
questioned.  By  the  British  Act  of  Parliament  of  Au 
gust,  1843,  these — with  certain  exceptions  to  the  last — 
\\ixxQ  been  abrogated.  The  act  lays  clown  the  broad 
principle,  that  it  is  desirable  that  "  the  persons  who  are 
appointed  to  decide  upon  the  facts  on  issue  should  ex- 
ercise their  judgment  on  the  credit  of  the  witnesses  ad- 
duced, and  on  the  truth  of  their  testimony ;"  and  enacts 
"  that  no  person  offered  as  a  ^vitness  shall  hereafter  be 
excluded  by  reason  of  incapacity  from  crime  or  interest, 
from  giving  evidence."  A  change  tending  directly  to 
the  same  conclusion,  is  now  also  taking  place  in  all  our 
states,  but  reserving,  however,  the  right  of  showing 
such  interest  or  con\dction  for  the  purpose  of  affecting 
the  credibility  of  the  witness. 

1st.  Of  Inronipetciicy  from  Defect  of  Uii(1er«itaii(lin^. 
Persons  who  have  not  the  use  of  reason  are  from  their 
infii-mity  utterly  incapable  of  gi^^ng  e^^dence,  and  are 
therefore  excluded  as  incompetent  mtnesses.  Such  in- 
competency may  arise,  where  there  is  a  natural  de- 
ficiency of  the  intellect,  as  in  the  case  of  idiots ;  or 
where  the  intellect  has  become  disordered,  as  in  tlie 
case  of  insane  persons ;  or  where  the  intellect  is  imma- 
ture, as  in  the  case  of  children. 

An  idiot  is  one  who,  from  his  nativity,  is  by  a  per- 


228  MILITARY    LAW    AND    COURTS-MARTIAL. 

petnal  infirmity  non  comjyos  mentis ;  such  a  person  is 
wholly  incapable  of  giving  evidence.  But  persons  born 
both  deaf  and  dumb,  though  prima  facie  in  contempla- 
tion of  law  idiots,  yet  if  it  appears  that  they  have  suffi- 
cient understanding  and  know  the  nature  of  an  oath, 
they  may  give  evidence  by  signs,  through  the  medium 
of  an  interpreter ;  or  if  they  are  able  to  write,  their  tes- 
timony will  be  taken  in  ^\Titing,  as  the  surest  mode.  A 
person,  however,  who  is  born  deaf,  dumb,  and  blind,  is 
still  looked  upon  by  the  law  as  in  the  same  state  as  an 
idiot,  being  supposed  incapable  of  any  understanding, 
as  wanting  all  those  senses  which  furnish  the  human 
mind  with  ideas. 

Persons  who  have  become  permanently  deranged  in 
intellect,  are  incompetent.  A  lunatic  is  a  person  who 
enjoys  intervals  of  sound  mind,  and  may  be  admitted  as 
a  ^^dtness  in  lucidis  intervallis.  He  must  of  course 
have  been  in  possession  of  his  intellect  at  the  time  of 
the  event  to  which  he  testifies,  as  well  as  at  the  time 
of  his  examination;  and  it  has  been  justly  observed, 
that  it  ought  to  appear  that  no  serious  fit  of  insanity  has 
intervened,  so  as  to  cloud  his  recollection,  and  cause  him 
to  mistake  the  illusions  of  imagination  for  the  events 
he  has  witnessed.  With  regard  to  those  persons  who 
are  afflicted  with  monomania^  or  an  al^erration  of  mind 
on  one  particular  subject,  not  touching  the  matter  in 
question,  and  whose  judgment  in  other  respects  is  cor- 
rect, the  safest  rule  appears  to  be  to  exclude  their  testi- 
mony, it  being  impossible  to  calculate  with  accuracy  the 
extent  and  influence  of  such  a  state  of  mind. 

When  a  witness  is  ohjected  to  as  incompetent  on  the 
ground  of  mental  deraTigement^  the  party  objecting  has 


OF   EVIDENCE.  229 

the  right  to  call  witnesses  and  prove  the  fact.  The 
want  of  reason  renders  the  person  incompetent ;  but  this 
incapacity  must  be  shown  to  the  court  by  proof,  like 
any  other  charge  of  incompetency.  But  when  a  person 
is  called  as  a  witness,  who  is  at  the  time  in  a  state  of 
intoxication^  the  court  have  the  power  to  decide  from 
their  own  view  of  the  situation  of  the  witness  offered, 
whether  he  be  intoxicated  to  such  a  degree  that  he  ought 
not  to  be  heard.  He  is  not  incompetent,  however, 
though  he  may  have  been  judicially  declared  an  habit- 
ual di'unkard,  provided  he  be  sober  when  called  to  tes- 
tify ;  and  his  intemperate  habits  cannot  be  proved  in 
order  to  impeach  him.  If  proved  intoxicated  at  the 
time  the  events  occurred,  at  least  the  credibility  of  his- 
testimony  might  be  questioned. 

There  is  no  precise  age  fixed,  at  which  <;iiii<iren  are 
excluded  from  giving  evidence.  Their  com})etency  is 
now  regulated,  not  by  their  age,  l)ut  by  the  degree  of 
understanding  which  they  appear  to  possess.  It  has 
been  decided  that  children  of  any  age  might  be  exam- 
ined under  oath,  if  ca})able  of  distinguishing  between 
good  and  evil,  and  possessing  sufficient  knowledge  of 
the  nature  and  consequences  of  an  oath ;  but  that  they 
cannot  in  any  case  be  examined  Avithout  oath.  This  is 
now  the  estaljlished  rule,  as  well  in  criminal  as  in  civil 
cases,  and  it  a})plies  equally  to  capital  offences  and  to 
offences  of  an  inferior  nature. 

In  criminal  cases,  where  a  child  is  a  necessary  witness 
for  the  prosecution,  and  a})pears  not  sufficiently  to  un- 
derstand the  nature  and  oblio-ation  of  an  oath,  it  is  com- 
petent  to  the  judge  to  postpone  the  trial,  tliat  the  child 
may  be  in  the  mean  time  properly  instructed ;  this  can- 


230  MILITAEY    LAW    AND    COUETS-MAKTIAL. 

not  l)e  done  after  the  prisoner  is  put  u])on  liis  trial.  It 
lias  been  Leld,  however,  that  the  effect  of  the  oath  on 
the  conscience  of  a  child  should  arise  fi'om  religious 
feelings  of  a  permanent  nature,  and  not  merely  from  in- 
structions confined  to  the  nature  of  an  oath,  which  have 
been  communicated  mth  reference  to  the  trial. 

Independently  of  the  sanction  of  an  oath,  the  testi- 
mony of  children,  after  they  have  been  sul)jected  to 
cross-examination,  is  often  entitled  to  as  much  credit  as 
that  of  grown  persons ;  what  is  wanted  in  the  perfec- 
tion of  the  intellectual  faculties,  is  sometimes  more  than 
compensated  1jy  the  absence  of  motives  to  deceive.* 

2d.  Of  IiKonipetency  from  Defect  of  Religious  Prio- 
cipie*  The  law  requires  that  all  mtnesses  who  are  ex- 
amined before  a  court-martial,  shall  give  their  evidence 
under  oath  or  affirmatio)i.  In  taking  an  oath,  a  witness 
must  be  understood  as  making  a  formal  and  solemn 
appeal  to  the  Supreme  Being  for  the  truth  of  the  evi- 
dence which  he  is  about  to  give,  and  further  as  impre- 
cating the  Divine  vengeance  on  his  head,  if  what  he 


shall  say  be  false. 

An  examination  on  oatli  or  affirmation  implies  that  a 
witness  should  go  through  a  ceremony  of  a  j^articular 
import,  and  also,  that  he  should  acknowledge  the  effi- 
cacy of  tliat  ceremony  to  speak  the  truth.  It  is  there- 
fore necessary,  in  order  that  a  witness's  testimony  be 
received,  that  he  should  believe  in  tlie  existence^  of  a 
God  by  whom  truth  is  enjoined  and  falsehood  punished. 
It  is  not  sufficient  that  a  witness  believes  himself  Iwund 
to  speak  the  truth  from  a  regard  to  character,  or  to  the 
eonnnon  interests  of  society,  or  from  a  fear  of  the  pun- 

*  1  Phillipps,  10-U;  Roscoe,  127. 


J 


OF    EVIDENCE.  231 

isliment  whicli  the  law  inflicts  upon  persons  guilty  of 
perjury.  The  true  test,  therefore,  of  a  witness's  compe- 
tency in  this  regard,  is,  whether  he  believes  in  the  exist- 
ence of  God,  and  that  an  ath  is  binding  on  the  con- 
science. It  is  not  necessary  that  he  should  believe  in  a 
future  state  of  rewards  and  punishments.  An  atheist, 
therefore,  is  excluded  from  being  a  witness.  To  prove 
his  belief  that  there  is  no  God,  it  is  competent  to  show 
his  settled  and  pi'evious  declarations  on  the  suljject. 
Though  the  witness  may  have  been  for  this  reason  in- 
competent, yet  if  the  objection  has  been  removed  by  a 
change  of  views  he  should  be  examined. 

Doubts  formerly  existed  with  respect  to  Jews  and  the 
inhabitants  of  countries  professing  religions  different 
from  Christianity.  But  a  wiser  rule  has  since  prevailed, 
and  it  is  now  well  settled  that  those  infidels  who 
believe  in  a  God  who  enjoins  truth  and  punishes  false- 
hood in  this  world,  though  not  believing  in  a  future 
state,  may  be  admitted  as  witnesses,  and  sworn  accord- 
ing to  the  form  which  is  authorized  l)y  their  country  or 
their  religion. 

The  only  means  of  asocrtuiniiag  the  competency  of  a 
witness,  with  reference  to  religious  principle,  is  by  ex- 
amining the  party  himself  The  proper  mode  of  examina- 
tion is  not  to  question  the  witness  as  to  his  particular 
religious  opinions,  but  to  intpiire  generally  whether  he 
believes  in  the  existence  of  a  God,  and  whether  he  con- 
siders the  form  of  administering  the  oath  to  be  such  as 
will  be  binding  on  his  conscience. 

The  most  correct  andproj^er  time  for  thus  (^  .'-tioning 
the  witness  is  before  the  oath  is  administered ;  but  as  it 
may  happen  that  the  oath  ma}'  be  administered  in  the 


232  MILITAIIY    LAW    AXD    COURTS-MARTIAL. 

usual  form  before  the  attention  of  the  court  is  tlii'ected 
to  it,  the  party  is  not  to  be  precluded ;  but  the  witness 
may,  nevertheless,  be  afterward  asked  whether  he  con- 
siders the  oath  he  has  taken  as  binding  upon  his  con- 
science. If  he  answer  in  the  affii-mative,  it  would  be 
irrelevant  to  ask  further,  whether  there  be  any  other 
mode  of  swearing  more  binding  than  that  which  he  has 
used.  Such  an  acceptance  of  the  oath  not  only  imposes 
upon  the  witness  all  its  religious  obligation,  but,  should 
he  violate  its  sanctions,  subjects  him  also  to  the  tem- 
poral penalties  consequent  on  the  crime  of  perjmy.* 

3d.  Of  Incompetency  from  Infamy.  By  the  laws  of 
England  this  cause  of  incompetency  has  been  abolished, 
and  the  tendency  of  om*  laws  and  decisions  leads  to  the 
belief  that  this  will  ere  long  be  the  case  in  this  coun- 
try. 

The  conviction  of  an  infamous  crime,  followed  by 
judgment,  disqualifies  a  person  fi'om  giving  evidence; 
and  persons  rejected  for  this  cause,  are  said  to  be  incom- 
petent on  account  of  the  infamy  of  their  character.  Of 
the  crimes  which  incapacitate,  the  general  description 
includes  treason  and  felony,  and  every  species  of  the 
crimen  falsi.  Thus,  a  conviction  of  forgery  will  dis- 
qualify, as  will  also  all  offences  tending  to  pervert  the 
administration  of  justice  by  falsehood  or  fraud.  Of  this 
nature  are  perjury  and  subornation  of  perjury;  bribing 
a  witness  to  absent  himself,  in  order  that  he  may  not 
give  evidence ;  conspiring  to  procure  the  absence  of  a 
witness ;  conspiring  to  accuse  another  person  of  a  capital 
offence. 

A  person  incompetent  to  give  oral  evidence  in  court, 

*  Roscoo.  127-132. 


i 


OF   EVIDENCE.  233 

on  the  ground  of  infamy,  will  not  be  allowed  to  have 
his  affidavit  read,  unless  it  be  to  defend  himself  against 
a  complaint.  Having  attested  a  wi'itten  instrument  as 
a  subscribing::  witness  before  conviction,  his  handwritina; 
may  be  proved  afterward,  the  same  as  if  he  were  dead. 
And  though  the  general  rule  is,  that  in  actions  between 
third  persons  his  testimony  must  be  excluded,  he  is  al- 
lowed, in  cases  where  he  is  a  i:)arty,  to  make  affidavits  in 
exculpation  or  defence  of  himself 

In  order  to  exclude  the  witness  as  incompetent,  his 
incapacity  must  be  established  by  the  production  or 
proof  of  a  judgment  of  a  court  of  competent  jurisdic- 
tion ;  for  it  is  the  judgment  which  is  received  as  the 
legal  and  conclusive  evidence  of  his  guilt.  Parol  evi- 
dence could  not  therefore  be  given  of  it,  and  though  he 
himself  should  admit  that  he  was  convicted  of  felony, 
this  would  not  render  him  incompetent.  So  where  a 
witness  admitted  himself  guilty  of  perjury,  this  went  to 
his  crediT)ility  and  not  to  his  competency ;  and  he  was 
not  inadmissible  though  he  admitted  that  he  had  per- 
jured himself  on  the  point  in  question. 

When  the  convicted  party  has  suffered  the  punish- 
ment awarded,  he  is  again  rendered  competent^  except  in 
cases  of  particular  crimes,  such  as  perjury  and  suborna- 
tion of  perjury.  It  does  not  seem  clear  whether  the 
restoration  to  competency,  by  suffering  a  sentence,  has 
proceeded  on  the  ground  of  incompetency  being  in  the 
nature  of  punishment,  or  on  the  ground  of  a  regenerat- 
ing effect  of  punishment  upon  the  moral  feelings  of  the 
offender. 

The  competency  of  the  mtness  may  in  general  be 
restored  by  reversal  of  the  judgment,  or  by  a  pardon. 


234  MILITAEY    LAW    AND    COUETS-MAETIAL. 

The  reversal  of  the  judgment  is  proved  iu  the  same  man- 
ner as  the  judgment  itself;  and  the  pardon  is  proved  by 
its  production  under  seal.  If  the  pardon  be  conditional, 
the  performance  of  the  condition  must  be  shown.  The 
pardon  restores  the  party  to  all  his  rights,  and  is  said 
to  make  the  witness  a  new  creatui'e  and  give  him  a  new 
capacity.  And  this  is  clearly  so,  where  the  incompetency 
is  the  consequence  of  the  conviction  and  judgment;  but 
where  the  disability  is  annexed  to  the  con\dction  of  a 
particular  offence  by  the  express  words  of  a  statute,  the 
general  rule  is,  that  a  pardon  will  not  restore  his  com- 
petency. Nothing  less  than  a  legislative  act,  or  a  re- 
versal of  judgment  can  restore  comj)etency  in  such  a 
case.* 

A  conviction  of  a  crime  in  another  state  is  not  admis- 
sible in  evidence  for  the  purpose  of  impeaching  the  credit 
of  a  witness.  But  a  conviction  in  another  state  of  a 
crime,  which  by  the  laws  of  that  state,  disqualifies  the 
party  from  being  heard  as  a  mtness,  and  which,  if  com- 
mitted here,  would  have  operated  as  a  disqualification, 
is  sufficient  to  exclude  him  from  testifying  here,  the 
same  as  if  it  had  been  committed  and  the  cenviction 
had  taken  place  in  this  jurisdiction. 

4th.  Of  Incoiupctc'iicy  by  Rcaf^oii  of  Interest.  The 
general  rule,  that  all  persons  interested,  to  however  small 
a  degree,  in  the  event  of  a  cause,  should  be  excluded  from 
giving  evidence  in  favor  of  that  party  to  whom  their 
interest  inclined  them,  has  l)een  recently  annulled  in 
Great  Britain,  and  the  incom2:)eteucy  limited  to  special 
cases.  This  is  also  the  case  in  many  of  om-  states,  and 
the  belief  is  reasonable  that  in  time  the  rule  of  incompe- 

*  1  Phillipps,  22. 


\ 


OF  EVIDENCE.  235 

tency  from  this  cause  will  be  swept  away  tlirougliout 
the  country.  The  general  rule  seems  to  rest  upon  the 
unsound  j^rinciple,  that  the  situation  of  the  witness  will 
tempt  him  to  perjury;  that  in  the  majority  of  instances 
men  are  so  corrupted  by  their  intei-est,  tliat  they  will 
perjure  themselves  for  it,  and  that  besides  being  corrupt, 
they  will  be  so  adroit  as  to  deceive  courts  and  juries. 
This  is  contrary  to  all  experience.  Witnesses  are  general- 
ly honest,  however  jnuch  interested,  and  in  most  cases  of 
dishonesty  the  falsehood  of  the  testimony  is  detected. 
The  rule  is  as  unsound  in  theory  as  it  is  inconsistent  in 
practice,  because  the  law  admits  "\\'itnesses  far  more  like- 
ly to  be  biased  in  favor  of  the  part}'  than  he  who  has  a 
mere  interest.  A  father  may  testify  for  his  son ;  a  child 
living  with  his  father  and  dependent  upon  his  bounty, 
may  appear  as  his  witness  without  question.  Is  the 
immediate  gain  by  the  result  of  the  cause,  so  potent 
as  to  outweigh  integrity,  while  affection,  consanguinity, 
dependence,  are  put  down  as  dust  in  the  balance  ?  It 
is  wiser,  certainly,  to  place  the  witness  c^n  the  stand,  and 
let  the  jury  judge  of  his  testimony."^' 

On  a  trial  before  a  court-martial,  the  accuser  or  imrty 
aggrieved  is  a  competent  ^vitness,  though  he  may  him- 
self have  originated  the  charges,  or  may,  in  any  other 
way,  be  materially  interested  in  the  result.  The  trial, 
though  set  in  motion  at  the  instance  of  the  aggrieved 
party,  has  not  f(.)r  its  object  \X\(i  re])aration  of  individual 
injury,  but  the  satisfaction  of  public  justice.  The  inno- 
cence or  guilt  of  the  prisoner  is  the  single  question  u2)on 
which  the  court  pronounce  their  verdict. 

The  expectation  of  a  l)enefit,  not  necessarily  and  legal- 

*  1  Phillipps,  p.  25. 


236  MILITARY   LAW   AND    COURTS-MARTIAL. 

ly  flowing  from  the  event  of  tlie  proceeding,  does  not 
render  the  witness  incompetent — as  the  promise  of  a 
pardon.  So  where  a  woman  gave  evidence  against  a 
prisoner  under  the  hope  that  his  conviction  ^vould  tend 
to  procure  the  pardon  of  her  husband,  who  had  been 
convicted,  it  went  to  her  credit  only  and  not  to  her 
competency.  Persons  who  are  entitled,  under  the  gen- 
eral regidations  of  the  ai-my,  to  a  reward  for  the  appre- 
hension and  delivery  of  deserters,  are  competent  wit- 
nesses. So  in  prosecutions  where  there  are  rewards, 
although  the  rewards  can  only  be  the  efl:ect  of  the  con- 
viction, the  prosecutors  are  competent  mtnesses,  yet 
every  man  who  comes  as  a  witness  under  the  idea  of 
having  a  reward  on  the  con^dction  of  the  prisoner,  might 
be  said  to  be  interested  in  the  event  of  the  cause.  Where 
a  party  is  entitled  to  a  pardon,  provided  another  offender 
be  convicted  on  his  testimony,  the  party  so  entitled  is  a 
competent  witness. 

Mere  interest  or  hias^  arising  from  the  witness  stand- 
ing in  the  same  situation  as  the  party  by  whom  he  is 
tendered,  is  not  sufficient.  Thus,  when  several  persons 
axe  separately  charged  for  perjury  in  swearing  to  the 
same  fact,  any  of  them  may  be  before  convection  a  ^^At^ 
ness  for  the  others,  because  he  is  not  interested  in  the 
event.  Nor  is  a  person  incompetent  because  he  is  per- 
sonally interested  in  a  similar  question  to  that  upon 
which  he  is  called  to  give  evidence. 

If  the  witness  lay  a  wager  that  he  will  convict  the 
prisoner,  he  is  still  competent,  though  it  goes  to  his 
credit. 

With  regard  to  the  competency  of  parties  defending 
in  criminal  prosecutions,  as   they   are  generally  most 


OF   EVIDENCE.  237 

strongly  interested  in  the  event,  it  seldom  happens  that 
they  can  be  called  as  witnesses.  One  of  the  several 
persons  jointly  indicted  or  charged,  may,  however,  be 
rendered  competent  to  give  evidence,  either  for  the  pros- 
ecution or  for  his  codefendants.  Thus,  if  a  nolle  pro- 
sequi be  entered,  either  before  or  at  the  trial,  as  to  one 
of  the  defendants,  such  defendant  may  be  called  as  a 
witness  for  the  crovernment  asrainst  his  codefendants. 

In  like  manner,  one  of  several  defendants  may  be 
rendered  competent  in  some  cases  by  a  separate  verdict 
at  the  trial.  As  where  it  appears  at  the  close  of  the 
case  for  the  prosecution,  that  there  is  no  evidence  against 
one  of  the  defendants,  a  separate  verdict  of  acquittal 
may  be  taken  as  to  him,  and  he  may  then  be  called  as 
a  witness  on  behalf  of  the  others.  This  procedure  can- 
not be  exactly  followed  by  courts-martial,  from  the  ne- 
cessity of  subsequent  approval  of  the  verdict  of  acquit- 
tal. The  court  might  however  adjourn  until  the  case  is 
acted  upon  by  the  confirming  authority,  then  reassemble 
and  proceed  with  the  other  cases.  A  prisoner,  who  may 
desire  to  avail  himself  of  the  evidence  of  a  person  in- 
volved in  the  same  charge,  should,  on  the  receipt  of  the 
copy  of  charges  and  specifications  alleged  against  him, 
urge  the  necessity  of  his  separate  trial,  and  should  the 
convening  authority  neglect  his  representation,  he  should 
apply  directly  to  the  court-martial. 

Simmons  quotes  from  a  letter  of  Lord  Erskine,  that 
covers  the  case  in  point.  "  The  case  of  one  of  the  mu- 
tineers at  Portsmouth  I  remember  more  distinctly.  He 
was  tried  with  others,  and  as  it  was  likely  that  against 
one  of  tJiern^  loho  hieio  the  innocence  of  the  person  in 
question^  no  evidence  could  be  given,  I  advised  the  at- 


238  MILITARY   LAW    AND    COUETS-MARTL^. 

torney  who  was  employed  by  liim,  if  tliat  turned  out 
to  be  so,  to  apply  to  the  court,  on  the  authority  of  my 
opinion,  to  direct  such  i)erson  to  be  acquitted,  and  then 
to  pennit  him  to  establish,  by  his  evidence,  the  innocence 
of  the  man  in  question.  This  application  being  accord- 
ingly made,  the  court  declared  itself  to  be  satisfied,  that 
the  course  proposed  was  agreeable  to  the  practice  of  the 
courts  of  criminal  law,  but  not  of  courts-martial ;  the\ 
therefore  refused  to  adopt  it,  and  having  no  other  de- 
fence, he  was  sentenced  to  be  executed."  Lord  Erskine 
then  suggested  to  his  majesty  "  that  the  court-martial 
ought  to  have  confoimed  to  the  rule  established  in  the 
common  law  courts,  and  implored  the  king  to  respite 
the  execution,  and  to' submit  the  case  to  the  twelve  judges 
for  their  decision  on  it.  The  judges  having  decided 
unanimously  that  the  con\dction  was  iinivarranted^  the 
man  was  set  at  liberty."* 

A  })risoner,  who  has  pleaded  guilty  to  a  charge,  is  a 
competent  witness  against  other  defendants  joined  in 
the  same  charge,  on  the  ground  that  he  is  not  a  party 
to  the  issues  ;  the  only  issues  being  whether  the  other 
prisoners  are  guilty  or  not. 

Some  difficulty  might,  perhaps,  arise  in  cases  where 
one  of  several  defendants  has  pleaded  guilty  to  a  charge, 
where  the  gist  of  the  oifence  lies  in  its  joint  conunission 
by  all  or  a  certain  number  of  the  parties  charged :  <?.,  (/., 
in  an  indictment  against  A  and  B  for  a  conspiracy :  in 
such  case,  if  A  had  pleaded  guilty,  and  were  called  as  a 
witness  for  B,  he  would  have  a  dii-ect  interest  in  procuring 
the  acquittal  of  B  ;  as  in  that  event,  it  seems  doubtful 
whether  any  valid  judgment  could  be  pronounced  against 

*  Simmons,  453,  note. 


OF   EVIDENCE.  239 

the  defendant  wlio  had  pleaded  guilty.  Nevertheless,  it 
appears  the  witness  could  not  be  ol)jected  to  on  the 
score  of  interest  alone ;  that  would  be  a  matter  affect- 
ing only  his  credibility,  as  he  would  not  be  a  party  to 
the  issue.  The  "witness,  in  fact,  would  seem  to  stand  in 
the  same  position  as  if  he  were  not  joined  in  the  indict- 
ment, but  the  other  defendants  were  indicted  alone  for 
conspii'ing  with  him,  the  witness ;  in  which  case  there 
seems  to  be  no  doubt  but  that  he  would  be  competent.* 

Hu««c>an<i  and  "Wife  are  not  admitted  as  AAdtnesses  for 
or  against  each  other,  in  any  trial,  where  one  of  them 
may  be  a  party.  The  declarations  of  husband  and  wife 
are  subject  to  the  same  ride  of  exclusion  as  their  viva 
voce  testimony.  No  other  relation,  however,  is  excluded: 
a  father  may  give  evidence  for  his  sou,  or  the  son  for  his 
father ;  although  the  relation  between  them  may  influ- 
ence his  testimony,  it  will  not  render  him  incompetent. 

The  reason  for  excludinsr  the  husband  and  wife  from 
o-ivino;  e\'idence  for  or  asrainst  each  other,  is  founded 
partly  on  their  identity  of  interest,  and  ]3artly  on  a 
principle  of  public  policy,  which  deems  it  necessary  to 
guard  the  security  and  confidence  of  private  life,  even  at 
the  risk  of  an  occasional  failure  of  justice.  They  cannot 
be  witnesses  for  each  other,  because  their  interests  are 
absolutely  the  same ;  they  are  not  witnesses  against 
each  other,  because  this  is  inconsistent  ^vith  the  relation 
of  marriage,  and  the  admission  of  such  evidence  would 
lead  to  disunion  and  unhappiness,  and  possibly  to  per- 
jury. ^ 

This  general  rule  of  evidence,  which  has  been  adopt- 
ed for  the  purpose  of  promoting  a  perfect  union  of 

*  Phillipps.  55-56. 


240  MILITARY    LAW    AND    C0URTS-3IARTIAL. 

interests,  and  of  securing  mutual  confidence,  is  so  sti'ict- 
ly  observed,  that  even  after  a  dissolution  of  marriage 
by  divorce,  neither  the  wife  nor  the  husband  is  admitted 
to  give  any  evidence  of  what  occuiTed  during  the  mar- 
riage, which  would  have  been  excluded  if  the  marriage 
had  continued.  Thus  one  great  cause  of  distrust  is 
removed  by  making  the  confidence,  which  once  subsists, 
ever  afterward  inviolable  in  courts  of  law.  Upon  the 
same  principle,  where  the  marriage  has  been  terminated 
by  the  death  of  either  party,  the  survivor  will  not  Ije 
permitted  to  give  evidence  of  transactions  that  occurred 
during  the  marriage.  The  wife,  for  instance,  cannot 
prove  a  contract  made  by  her  husband. 

The  rule  is  intended  solely  for  the  protection  of  per- 
sons who  have  entered  into  the  relation  of  husband  and 
wife ;  and  does  not  extend  to  those  who,  not  being  mar- 
ried, have  lived  together  and  cohabited  as  man  and 
Avife.*  Therefore  in  an  indictment  for  bigamy,  after 
proof  of  the  first  marriage,  the  second  wife  is  a  compe- 
tent witness  for  or  against  the  husband,  for  the  mar- 
riage is  void. 

It  is  not  in  every  case  in  which  the  husband  or  mfe 
may  be  concerned,  that  the  other  is  precluded  fi'om  giv- 
ing evidence.  Although  the  husband  and  wife  are  not 
allowed  to  be  witnesses  against  each  other,  where  either 
is  directly  and  immediately  interested  in  the  event  of  a 
proceeding  whether  civil  or  criminal,  yet,  in  collateral 
proceedings  not  immediately  affecting  their  mutual  in- 
terest, their  evidence  is  receivable,  notA^thstanding  that 
the  evidence  of  the  one  tends  to  contradict  the  other,  or 
may  subject  the  other  to  a  legal  demand,  or  even  io  a 

*  1  Phillipps,  pp.  78-81. 


OF   EVIDENCE.  241 

criminal  charge.  Indeed  it  would  seem  now  to  be  the 
settled  doctrine,  both  on  authority  and  principle,  that 
husband  and  mfe  may  be  received  to  contradict  or 
criminate  each  other  in  a  collateral  matter,  that  is,  in 
all  cases  except  where  one  is  called  to  contradict  or 
criminate  the  other  as  a  party  to  some  cause.  A  wife 
may  be  a  ^Wtness  in  an  action  between  third  persons 
not  immediately  aftecting  the  interest  of  the  husband, 
though  her  evidence  may  possibly  expose  him  to  a  legal 
demand;  and  though  upon  her  testimony  the  defendant 
mio-ht  have  a  verdict,  and  an  action  mis^ht  afterward 
in  consequence  be  ])rought  against  the  husl)and,  she 
would  not  then  be  admitted  as  a  Avitness,  nor  could  her 
evidence  in  the  first  suit  1^e  produced  against  him. 

In  all  cases  of  pcrso»i:iB  injuries  committed  by  the 
husband  or  wife  against  each  other,  the  injured  party  is 
an  admissible  witness  against  the  other.  The  evidence 
is  admissible  in  such  cases  upon  the  principle  of  necessi- 
ty ;  not  a  general  necessity,  as  where  no  other  witness 
could  be  had,  but  a  particular  necessity,  as  where,  for 
instance,  the  injured  party  might  be  otherwise  exjiosed, 
without  remedy,  to  personal  injury.  Thus  on  a  prose- 
cution against  a  man  for  beating  his  wife,  she  is  allowed 
to  give  evidence.* 

The  deposition  of  a  wife  in  extremis,  is  admissible 
against  the  husl)and  charged  with  her  murder,  upon  the 
same  principle,  that  the  evidence  of  the  wife,  if  living, 
would  be  received  to  prove  a  case  of  personal  violence. 

It  has  been  erroneously  imagined  by  some  military 
men,  that  on  a  charge  before  a  court-martial  for  a 
breach  of  military  discipline,  the  wife  of  the  prosecutor 

*  1  Phillipps,  pp.  84-96. 

IG 


242  MILITAEY   LAW    AND    COTJRTS-MARTIAL. 

is  not  a  competent  witness.  Her  testimony  may  be  sus- 
picious in  an  equal  degree  with  that  of  the  prosecutor ; 
but  there  is  no  rule  or  reason  to  exclude  it.  The  pro- 
ceedings being  at  the  suit  of  the  crown,  as  in  criminal 
cases,  her  evidence  would  be  admitted  upon  the  same 
principle  as  that  of  the  prosecutor.  Any  attempt  to 
deceive  may  be  exposed  with  greater  facility  by  the 
opportunity  afforded  of  cross-examining  two  individuals 
to  the  same  fact,  than  if  one  only  was  admitted  to  give 
evidence ;  if,  therefore,  the  accused  be  innocent  of  the 
charge,  the  advantage  of  separately  examining  both 
husband  and  wife  is  entirely  in  his  favor.* 

Accomplices.  The  evidence  of  accomplices  has  been 
at  all  times  admitted,  and  its  admission  has  been  sup- 
ported on  the  ground  of  public  policy  and  necessity,  for 
its  being  scarcely  possible  to  detect  conspiracies  and 
many  of  the  worst  crimes,  ^dthout  their  information. 
The  credit  of  what  is  said  by  the  witness,  as  in  all  other 
cases,  must  be  left  to  the  jury  who  are  judges  of  the 
matter  of  fact  and  of  the  credibility  of  witnesses.  The 
object  of  admitting  such  evidence  is,  in  order  to  effect 
the  discovery  and  punishment  of  crimes  which  cannot 
be  proved  against  the  offenders  without  the  aid  of  the 
accomplice's  testimony. 

Accomplices  are  admitted  to  give  evidence  under  an 
implied  p)'omise  of  2y(irdo7i,  on  condition  of  their  making 
a  full  and  fair  confession  of  the  whole  truth ;  that  is,  of 
all  the  offences  about  which  they  might  be  questioned, 
and  of  all  their  associates  in  guilt.  This  implied  prom- 
ise arises  fi'om  the  consideration  that  the'  witness,  who 
is  not  bound  to  criminate  himself,  does  so  to  discover 

*  Simmons,  p.  457. 


OF    EVIDENCE.  243 

greater  offenders.  If  he  acts  in  good  faitli,  and  is  admit- 
ted by  tlie  court  as  a  witness,  tlie  government  is  honor- 
ably l^oiuid  to  discharge  him.  Witli  regard  to  other 
offences  with  which  the  prisoner  at  the  bar  is  not 
charged,  an  accomplice  can  derive  no  advantage  from 
such  equitalde  claim  to  a  pardon ;  the  claim  must  be 
considered  as  limited  to  the  particular  offence,  for  the 
prosecution  of  which  his  testimonj"  is  admitted. 

For  the  adtni^-s-ion  of  an  accomplice  to  testify^  a  motion 
should  be  made  to  the  court  by  the  public  prosecutor, 
and  the  court,  under  the  circumstances  of  the  case,  will 
admit  or  disallow  the  evidence,  as  may  most  effectually 
answer  the  purposes  of  justice.  On  motion  to  admit 
him  as  a  witness,  it  should  be  shown  that  his  testimony 
is  absolutely  essential  to  prove  the  commission  of  the 
crime  by  the  party  on  trial,  and  that  the  person  pro- 
posed to  be  admitted  is  not  more  guilty  than  the  other. 

As  an  accomplice  is  not  an  incompetent  witness  for 
the  prosecution,  it  follows  that  he  will  be  also  a  compe- 
tent witness  on  behalf  of  the  prisoner,  notwithstanding 
he  may  be  himself  charged  on  a  separate  indictment. 
Where  several  persons  are  jointly  indicted,  one  is  not  a 
com])etent  witness  for  another,  without  l^eing  first 
acquitted  or  convicted,  and  it  makes  no  difference 
whether  the  defendants  plead  jointly  or  separately. 

Since  accom|)lices  are  competent  witnesses,  it  appears 
to  follow  as  a  necessary  consequence,  that  if  their  testi- 
mony is  believed  l)y  the  jury,  a  prisoner  may  be  legally 
convicted  upon  it,  though  it  be  unconfirmed  by  any 
other  evidence.  It  is  the  peculiar  province  of  the  jury 
to  determine  upon  the  degree  of  credit  to  be  attached 
to  any  competent  evidence  submitted  to  their  considera- 


244  3IILITAEY    LAW    AND    COUETS-MAETIAL. 

tion ;  aud  it  lias  accordingly  been  laid  do^vn  in  many 
cases  as  a  settled  rule,  that  a  conviction  obtained  upon 
tlie  unsupported  testimony  of  an  accomplice  is  strictly 
legal.  Tliis  doctrine  lias  however  been  greatly  modified 
in  practice ;  and  it  lias  long  been  considered  as  a  general 
rule  of  practice,  tliat  the  testimony  of  an  accomplice 
ought  to  receive  confirmation;  and  that,  unless  it  be 
corroborated  in  some  material  part  by  unimpeachable 
evidence,  the  prisoner  ought  to  be  acquitted.  This 
practice  aj)plies  equally  when  two  or  more  accomplices 
are  brought  forward  against  a  prisoner."^ 

Profo<«<«ioiial  Contidci&ec,  and  Privileg^ed  Coinniuuioa- 
tioit§.  Although  a  witness  is  sworn  to  speak  the  truth, 
the  wliole  truth,  and  nothing  but  the  truth,  yet  there 
are  certain  matters  which  he  is  not  only  not  bound  to 
disclose,  but  which  it  is  his  duty,  even  under  the  obliga- 
tion of  an  oath,  not  to  disclose.  Where  a  communica- 
tion takes  place  between  a  counsel  and  his  client,  or  be- 
tween the  government  and  some  of  its  agents,  such  com- 
munication is  privileged,  on  the  ground  that  should  it  be 
suffered  to  be  disclosed,  the  due  administration  of  justice 
and  government  could  not  proceed ;  such  administration 
requiring  the  observance  of  inviolable  secrecy.  But  the 
rule  does  not  extend  beyond  the  two  classes  of  persons 
above  mentioned,  whatever  obligation  of  concealment 
the  party  may  have  incurred. 

Except  in  the  case  of  matters  of  state,  the  privilege  of 
not  disclosing  confidential  communications,  is  confined 
to  counsel^  solicitors,  attorneys,  and  their  agents  and 
clerks.  Other  professional  persons,  whether  physicians, 
surgeons,  or  clergymen,  have,  it  seems,  no  such  piivilege. 

*  1  PhiUipps,  105-113. 


OF    EVIDENCE.  245 

A  person  who  acts  as  an  interpreter  between  a  client 
and  liis  attorney,  will  not  be  permitted  to  divulge  wbat 
passed ;  for  what  passed  through  the  medium  of  an  inter- 
preter, is  equally  in  confidence  as  if  said  directly  to  the 
attoi'ney ;  but  it  is  otherwise  with  regard  to  conversa- 
tion l)etween  the  interpreter  and  the  client  in  the  absence 
of  the  attorney.  So  the  agent  or  the  clei'k  of  the  attor- 
ney stands  in  the  same  situation  as  the  attorney  himself. 

Tiie  privilege  is  that  of  the  client  and  not  of  the  attor- 
ney, and  the  courts  will  prevent  the  latter,  although 
willing;  from  makino-  the  disclosure.  But  if  the  attor- 
ney  is  called  by  his  client,  and  examined  as  to  a  matter 
of  confidential  communication,  he  may  be  cross-examined 
as  to  that  matter  though  not  as  to  others.  The  rule 
applies  also  to  the  professional  advisers  of  strangers  to 
the  inquiry.  Thus  an  attorney  is  not  at  liberty  to  dis- 
close what  is  communicated  to  him  confidentially  by  his 
client,  although  the  latter  be  not  in  any  shape  before 
the  court. 

If  a  person  not  being  an  attorney  is  considted  by  an- 
other, under  a  false  impression  that  he  is  such,  he  will 
not  be  ]n'ivileged  from  disclosing  what  passes.  So  an 
attorney  is  not  privileged  from  disclosing  matters  com- 
municated to  him  before  his  retainer,  or  after  it  had 
ceased,  for  tlu-n  he  stands  clearly  in  the  same  situation 
as  any  other  person.* 

1)1  general^  a  witness  who  is  pi'ivileged  from  disclos- 
ing facts  which  have  come  to  him  in  his  professional 
capacity,  is  sworn  in  the  usual  manner  to  speak  tlie 
truth,  the  icliole  trutli^  and  nothing  but  tlie  truth.  The 
c^eneral  oblio^ation  of  an  oath  to  declare  the  whole  truth, 

*  Roscoe,  186,  187. 


246  MILITARY    LAW    AND    COUETS-MAETIAL. 

must,  liowever,  witli  reference  to  the  subject  matter  and 
occasion  of  the  oath,  be  necessarily  understood  to  mean 
the  truth  so  far  as  it  ought  legally  to  be  made  known.* 

There  are  cases  to  which  the  law  of  J)ri^'ilege  is  not 
extended,  and  this  is  much  to  be  lamented.  As  for  in. 
stance,  those  in  which  medical  ijersons  are  obliged  to 
declare  the  information  which  they  have  acquu'ed  by 
attending  in  theii'  professional  characters.  In  several 
of  the  United  States,  as  New  York  and  Missouri,  j)hy- 
sicians  and  sui-geons  are  not  allowed  to  disclose  any  in- 
formation they  may  have  acquired  in  attending  a  patient 
professionally,  where  such  infoimation  was  necessary  to 
enable  them  to  do  any  professional  act  for  the  patient. 

Confidential  communications  to  a  friend  are  not  priv- 
ileged ;  in  cases  criminal  as  well  as  civil,  he  is  compella- 
ble when  required  by  courts  of  justice  to  disclose  them, 
although  made  under  an  injunction  and  promise  of 
secrecy. 

A  confession  to  a  clergyman  or  jyriest  is  not  privileged 
by  the  general  rule.  But  by  some  it  has  been  con- 
tended that  an  exception  should  be  made  with  regard 
to  confessions  made  to  a  Catholic  priest,  upon  the  ground 
that  confession  in  the  Roman  Catholic  church  is  a  relig- 
ious duty,  and  that  to  compel  the  disclosui'e  by  means 
of  punishment,  would  be  in  effect  to  punish  the  party 
for  religious  opinions.  By  the  laws  of  New  York  and 
Missouri,  no  minister  of  the  gosj^el,  or  priest  of  any  de- 
nomination, is  allowed  to  disclose  any  confessions  made 
to  him  in  his  professional  character,  in  the  course  of  dis- 
cipline enjoined  by  the  rides  and  practice  of  such  denom- 
ination. 

*  2  Starkie,  232. 


OF   EVIDENCE.  247 

Privileged  coiiiiininieatioiis  include  all  statements  and 
Awitings  made  or  given  by  a  client  to  Lis  attorney  or 
counsellor,  for  the  purpose  of  obtaining  professional  ad- 
vice or  assistance.  A  communication  if  confidential  is 
privileged,  in  whatever  form  it  is  made.  If  it  would 
be  privileged  wlien  communicated  in  words,  spoken  or 
written,  it  will  be  privileged,  equally,  wlien  conveyed 
by  means  of  sight  instead  of  Avords.  Thus,  an  attorney 
cannot  give  evidence  as  to  the  fact  of  the  destruction 
of  an  instrument  which  he  has  been  admitted  in  confi- 
dence to  see  destroyed.  Dii*ections  made  by  his  rela- 
tions or  friends  previous  to  trial ;  memorials  laid  before 
counsel ;  notes  furnished  to  agents  or  the  like,  if  done 
A\'ith  that  view — all  these  are  privileged  communica- 
tions. The  principle  of  protection  must  obviously  pre- 
clude an  attorney  from  producing  or  disclosing  the  con- 
tents of  papers  deposited  with  him,  confidentially,  in  his 
professional  character.* 

When  once  the  privilege  has  attached,  it  continues 
forever,  even  though  the  confidential  relation  between 
the  parties  may  have  ceased. 

Where  the  subject  inquired  into  is  a  collateral  matter 
offact^  which  the  party  setting  up  the  privilege  obtained 
a  knowledge  of  in  his  individual  capacity,  and  not  in 
his  character  of  professional  adviser,  he  will  be  com- 
pelled to  disclose  it. 

Offleial  commuuBrations  may  be  priA^leged.  If  the 
communication  be  in  wi'iting,  and  it  is  held  that  the 
document  cannot  on  principles  of  public  policy  be  read 
in  CAndence,  the  effect  mil  be  the  same  as  if  it  be  not 
in  existence,  and  you  may  prove,  not  the  contents  of 

*  1  Phillipps,  136-145. 


248  jnLrrARY  law  and  coukts-maetial. 

tlie  instrument,  Init  what  was  done  by  tlie  orders  of  tlie 
superior. 

The  iwoceedings  of  a  court  of  inquiry  are,  by  our 
rules  and  articles  of  war,  privileged  in  cajiital  cases,  or 
those  extending  to  the  dismission  of  an  officer ; — l^ut 
may  be  admitted  as  evidence  by  a  court-martial  in  all 
other  cases,  provided  that  the  circumstances  are  such 
that  oral  testimony  cannot  be  obtained.* 

]Vcs;roes.  There  is  still  another  class  of  persons  in 
this  country,  in  relation  to  whom  questions  of  compe- 
tency have  arisen  before  courts-martial.  These  are  ne- 
groes, or  of  African  blood,  and  upon  this  fact  the  objec- 
tions to  their  competency  ai"e  based. 

In  the  case  of  Dr.  Fellows,  assistant  sui'geon.  United 
States  army,  tried  at  Fort  Niagara,  N.  Y.,  in  1838,  the 
accused  presented  a  colored  person  to  be  sworn  as  a 
witness  for  the  defence.  A  member  of  the  court  ob- 
jected to  him  as  being  incompetent.  The  judge  advo- 
cate briefly  stated  that  the  evidence  of  such  persons 
was  not  excluded,  either  by  the  United  States  laws,  or 
the  laws  of  the  state  of  New  York,  and  that  unless 
other  objections  to  his  competency  than  the  one  urged 
were  presented,  the  com't-martial  must  receive  it ;  and 
that  the  couii;  could  not  go  beyond  impeaching  his  cred- 
ibility. After  due  deliberation,  the  court  decided  that 
the  person  was  competent,  and  his  evidence  was  ad- 
mitted in  the  usual  way.  The  re^aewing  authority  ap- 
proved the  proceedings  of  the  court. 

The  same  question  arose,  pending  the  trial  of  Lieu- 
tenant Hooe,  United  States  navy,  in  Pensacola  Harbor, 
Florida,  in  1839.     Two  free  colored  persons,  seamen, 

*  92d  article  of  war. 


OF  evide:nce.  249 

were  iutroduced  as  witnesses  for  the  prosecution,  took 
tlie  oatli  and  gave  evidence,  the  court  admitting  tlieir 
competency.  The  accused  protested  against  the  admis- 
sion of  such  evidence,  on  the  ground  that  he  conceived 
their  testimony  altogether  illegal ;  and  that  it  would  he 
so  considered  before  the  civil  tribunals  of  Florida,  the 
forms  and  customs  of  ^vhich,  he  thought,  should  be  as 
closely  followed  by  a  court-martial  as  possible.  The 
trial  having  been  concluded  and  sentence  pronounced. 
Lieutenant  H.  appealed  to  the  President  of  the  United 
States,  urging  the  same  objections  as  sufficient  to  vitiate 
and  set  aside  the  whole  proceedings.  The  sentence  of 
the  court  was  however  approved  1  )y  the  Navy  Depart- 
ment, and  carried  into  effect  by  its  order,  under  the  im- 
])lied  sanction  of  the  President,  and  after  having  ob- 
tained the  opinion  of  the  district  attorney  of  the  United 
States,  ]\Ir,  Ke}',  in  the  al)sence  of  the  attorney-general. 
The  following  is  extracted  from  that  opinion :  "  Tlie  ac- 
cused ol^jected  that,  l)y  the  laws  of  Florida,  where  the 
com-t-martial  was  held,  such  persons  are  not  com2'>etent 
to  testify  against  a  white  person ;  and  he  therefore  con- 
tended that  they  should  be  in  like  manner  excluded 
from  testifying  on  courts-martial.  Such  a  consequence 
-woidd  not  follow  from  tlie  law  of  Florida.  The  officers 
composing  the  court  ^vere  bound  to  admit  the  witness, 
unless  some  legal  discpialification  was  shown.  This 
could  only  be  by  a  law  of  Congress.  Whether  it  be 
right  that  there  should  be  a  law  requiring  courts-mar- 
tial of  the  United  States  to  reject  all  such  -witnesses  as 
are  disqualified  by  the  laws  of  the  state  or  territory 
where  the  courts  may  be  held,  is  a  question  for  Con- 
gress alone.      Till  they   enact  the   disqualification,   it 


250  JnLITAEY   LAW    AND    COTJRTS-MAETIAL. 

cannot  be  enforced.     The  couii;  could  not  do  otherwise 
than  admit  the  testimony." 

The  House  of  Representatives  called  for  a  copy  of 
the  record  of  the  proceedings,  &c.,  in  the  above  case. 
In  answer  to  the  call,  the  secretary  of  the  na\'y  re- 
marks :  "  In  submitting  these  documents,  it  seems  prop- 
er to  state  that  the  department  has  not,  in  approving 
the  judgment  of  the  court-martial,  made  any  decision  on 
the  legality  or  illegality  of  admitting  the  testimony  of 
fi'ee  colored  persons  who  are  enlisted  on  board  of  a 
vessel  of  the  United  States.  No  law  exists,  within  the 
knowledge  of  the  department,  to  regulate  this  practice ; 
and  as  a  decision  of  the  point  one  way  or  the  other  was 
not  called  for  to  regulate  the  opinion  of  the  department 
as  to  the  correctness  of  the  judgment,  it  was  deemed  im- 
proper, under  such  circumstances,  to  decide  a  legal  ques- 
tion not  provided  for  by  any  act  of  Congress,  and  which 
would,  when  decided,  affect  the  rights  (if  they  exist)  of 
officers  and  seamen  to  produce  such  testimony,  even  in 
their  o\^'n  defence,  and  when  tried  on  capital  charges."""'" 

In  the  absence  of  all  statute  laws  settling  this  ques- 
tion, and  in  view  of  the  utterly  divergent  and  irrecon- 
cilable opinions,  on  the  subject  of  slavery,  held  by  dif- 
ferent sections  of  the  country,  it  is  the  policy  of  all 
courts-martial  to  be  guided  and  governed  in  such  cases, 
by  the  rules  that  regulate  the  federal  coui'ts  of  law,  and 
which  are  in  harmony  with  the  rules  of  e\'idence  of  the 
particular  states  or  territories  in  which  these  courts  may 
hold  their  sessions. 

It  is  a  settled  point  at  common  law,  that  a  slave  can- 
not be  a  witness,  because  of  the  unbounded  influence  of 

*  Doc.  No.  2-44,  II.  of  R.,  26th  Congress,  1st  Session. 


OF    EVIDENCE.  251 

Ills  master  over  liim,  wliicli  is  at  least  equal  to  duress. 
But  it  Las  l)eeu  said,  that  tlie  declarations  of  a  slave  in 
respect  to  liis  liealtli  are  admissible,  to  show  the  effects 
of  a  blow. 

Hearsay  Evidence.  The  term  hearsay  evidence  is  used 
Avith  reference  Ijoth  to  that  which  is  written,  and  to  that 
which  is  spoken.  But  in  its  legal  sense,  it  is  confined 
to  that  kind  of  evidence  which  does  not  derive  its  ef- 
fects solely  from  the  credit  to  l)e  attached  to  the  witness 
himself,  but  rests  also  in  part  on  the  veracity  and  com- 
petency of  some  other  person,  from  whom  the  witness 
may  have  received  his  information.  The  general  rule 
is,  that  hearsay  evklcnee  is  not  receivable.  It  is  in- 
admissible on  two  grounds :  first,  that  the  party  origi- 
nally stating  the  facts  does  not  make  the  statement  under 
the  sanctity  of  an  oath;  and  secondly,  that  the  party 
against  whom  the  evidence  is  offered  would  lose  the  op- 
portunity of  examining  into  the  means  of  knowledge 
of  the  party  making  the  statement.  By  our  articles 
of  war,  every  fact  for  or  against  a  prisoner  must  be 
proved  on  oath,*  and  by  the  constitution  the  accused 
must  "  be  confronted  with  the  witnesses  against  him."f 

Besides  these  tests,  it  must  be  considered  that  such 
evidence  is  very  liable  to  he  fallaeious,  from  the  facility 
with  Avliich  it  ma}-  have  been  imperfectly  heard,  or  from 
having  been  misunderstood  or  inaccurately  remembered, 
or  perhaps  perverted,  or  possibly  altogether  fabricated. 
It  is  to  be  observed  also,  that  persons  communicating 
such  evidence  ai-e  not  subject  to  the  danger  of  a  prose- 
cution for  perjury ;  for  where  the  hearsay  statement  is 
said  to  have   been  made  when   no   third    jierson  was 

*  73d  article  of  war.  Ith  Amendment  to  tlio  Constitution. 


252  [LITAEY    LAW    AND    COURTS-MAETIAL. 

present,  tlie  witness  lias  no  cause  to  be  aj^preliensive  of 
punisliment,  even  thougli  he  lias  entirely  fabricated  the 
statement/^' 

Verbal  and  written  declarations  are  often  said  to  be 
admissible,  as  constituting  a  part  of  the  res  ge-stce.  As 
such,  they  are  most  properly  admissible  when  they 
accompany  some  act,  the  nature,  objects,  or  motives  of 
which  are  the  subject  of  inquiry.  For  where  ^rords  or 
^^Titings  accompany  an  act,  or  where  they  indicate  the 
state  of  a  person's  feelings,  or  bodily  sufferings,  they 
derive  their  credit  from  the  surrounding  cii-cumstances, 
and  not  from  the  bare  expressions  of  the  declarant. 
Where  evidence  of  an  act  done  by  a  party  is  admissible, 
his  declarations  made  at  the  time,  having  a  tendency  to 
elucidate  or  give  a  character  to  the  act,  and  which  may 
derive  a  deo;ree  of  credit  from  the  act  itself,  are  also  ad- 
missible  as  part  of  the  res  gestce.  On  the  trial  of  an 
indictment  for  manslaughter,  declarations  made  by  the 
prisoner  at  the  commencement  of,  and  during  the  fatal 
affi'ay,  as  well  as  immediately  before  and  after  it,  must 
be  received  as  constituting  a  part  of  the  res  gestce. 

The  declarations  of  a  j^arty  are  admissible  in  his 
favor^  when  they  are  so  connected  with  some  material 
act  as  to  explain  or  qualify  it,  or  show  the  intent  with 
which  it  was  done. 

Where  a  prisoner  indicted  for  murder  has  ^^I'oduced 
evidence  of  declarations  l)y  the  deceased,  with  a  view  to 
raise  the  presumption  that  he  committed  suicide,  it  is 
competent  for  the  prosecution  to  give  in  e\ddence  the 
reasons  assigned  by  him  for  his  declarations. 

It  is  not  competent  for  a  prisoner  indicted  for  murder, 

*1  rhmipps,  212. 


OF    EVIDENCE.  253 

to  give  111  evidence  his  own  account  of  tlie  transaction, 
related  immediately  after  it  occurred,  tliougli  no  third 
person  was  present  when  the  homicide  was  committed. 

When  the  state  of  mind,  sentiment,  or  disposition  of 
a  person  at  a  given  period,  become  pertinent  topics  of 
inquiry,  his  declarations  and  conversations,  being  part 
of  the  res  gestae^  may  be  resorted  to.* 

If  it  be  material  to  inquire  wlien  a  certain  person 
gave  a  jyarticular  order  on  a  certain  subject,  what  he 
has  said  or  ^viitten  may  be  evidence  of  the  order ;  or 
where  it  is  material  to  inquire  whether  a  certain  fact, 
be  it  true  or  false,  has  come  to  the  knowledge  of  a  third 
person,  what  he  has  said  or  written  may  as  clearly  show 
his  knowledg^e  as  what  he  has  done. 

Analogous  to  the  cases  in  which  hearsay  evidence  is 
admissible  as  being  part  of  the  res  gestae^  are  the  cases 
of  dyiiisr  declarations.  It  is  said  by  E}Te,  C.  B.,  that 
the  general  principle  uj^on  which  evidence  of  this  kind 
is  admitted  is,  that  it  is  of  declarations  made  in  ex- 
tremity, when  the  party  is  at  the  point  of  death,  and 
when  every  hope  of  this  world  is  gone,  when  every 
motive  to  falsehood  is  silenced,  and  the  mind  is  induced 
l)y  the  most  powerful  considerations  to  speak  the  truth. 
A  situation  so  solemn  and  so  aA\lful,  is  considered  by 
the  law  as  creating  an  obligation  equal  to  that  which  is 
imposed  by  a  positive  oath  administered  in  a  court  of 
justice. 

Evidence  of  this  kind,  which  is  peculiar  to  the  case 
of  homicide,  has  been  considered  by  some  to  be  admis- 
sible from  necessity,  since  it  often  happens  tliat  there  is 
no  third  person  present  to  be  an  eye-witness  to  the  fact. 

*  Roscoe,  22,  2a. 


254  MILITARY    LAW    A]^D    COUETS-MAETIAL. 

It  shall  not  be  allowed  to  tlie  offender  to  commit  a 
homicide,  and  by  the  same  act  jDut  to  silence  the  only 
witness  at  whose  mouth  he  may  be  condemned. 

Where  the  declarations  offered  in  evidence  as  to  the 
cause  of  death,  are  of  a  deceased  who  has  been  particeps 
crinninis^  they  are,  nevertheless,  as  it  seems,  admissible 
against  the  other  party,  though  it  may  need  corrob- 
oration. 

The  statement  of  tlie  deceased  must  be  such  as  would 
be  admissible  if  he  were  alive  and  could  be  examined 
as  a  witness ;  consequently  a  declaration  upon  matters 
of  opinion  as  distinguished  from  facts,  will  not  be  re- 
ceivable. 

Dying  declarations  in  favor  of  the  party  charged 
with  the  death,  are  admissible  in  evidence  equally  as 
where  they  operate  against  him. 

It  is  no  objection  to  a  dying  declaration,  that  it  has 
been  elicited  by  questions  put  to  the  deceased ;  he  may 
be  examined  upon  oath  by  a  magistrate,  and  the  exami- 
nation be  signed  by  both,  but  Avhere  this  is  the  case, 
neither  a  copy  of  the  paper  nor  parol  evidence  of  its 
contents  can  be  received. 

The  question,  loliether  a  dying  declaration  is  admis- 
sible in  evidence^  is  exclusively  for  the  consideration  of 
the  court.  And  it  is  a  general  rule  that  dying  declara- 
tions, though  made  with  a  full  consciousness  of  ap- 
proaching death,  are  only  admissil:)le  in  evidence  where 
the  death  of  the  deceased  is  the  subject  of  the  charge, 
and  the  circumstances  of  the  death  are  the  subject  of 
the  dying  declarations.* 

Before  dying  declarations  can  be  received  in  evidence, 

*  Roscoe,  27,  28. 


OF    EVIDENCE.  255 

inquiry  must  be  made,  wlietlier  tlie  deceased  appre- 
hended tliat  lie  was  in  sueli  a  state  of  mortality,  as 
would  inevitably  oblige  liim  soon  to  answer  before  liis 
Maker  for  tlie  truth  or  falsehood  of  his  assertions.  In 
this  inquiry  it  is  not  necessary  that  the  deceased  should 
have  explained  by  any  expressions,  whether  he  thought 
himself  likely  to  live  or  die,  if  it  be  clear  that  the  party 
did  not  expect  to  sur^^.ve  the  injury — if  his  condition 
was  such  that  he  must  have  felt  that  he  was  a  dying 
man.  Positive  evidence  of  this  knowledge  is  not  re- 
quired ;  but  it  may  be  inferred  from  the  general  conduct 
and  deportment  of  the  party.  It  is  necessary  to  hear 
all  that  the  party  said  relative  to  his  situation,  in  order 
to  ascertain  whether  he  had  that  impression  upon  his 
mind,  which  will  make  his  declarations  admissible  in 
evidence. 

Dying  declarations  are,  of  course,  o;pen  to  direct  con- 
tradiction in  the  same  manner  as  any  other  part  of  the 
case  for  the  prosecution,  and  the  prisoner  is  at  liberty 
to  2:>rove  that  the  character  of  the  deceased  was  such 
that  no  reliance  is  to  be  placed  on  his  dying  declara- 
tions. If  the  deceased  by  reason  of  infancy,  or  imbecil- 
ity of  mind,  or  a  disbelief  in  a  God,  would  have  been 
excluded  as  a  witness  while  living,  his  dying  declara- 
tions would,  for  like  causes,  be  rejected  by  the  court. 

As  the  declarations  of  a  dying  man  are  admitted,  on 
a  .sui)position  that  in  his  awful  situation  he  had  the 
strongest  motives  to  speak  without  disguise  and  mth- 
out  malice,  it  necessarily  follows  that  the  party  against 
whom  they  are  produced  in  evidence,  may  enter  into 
the  particulars  of  his  state  of  mind,  and  of  his  behavior 
in  his  last  moments  ;  and  may  be  allowed  to  show  that 


256  MILITARY    LAW    AND    COUETS-MARTIAL. 

the  deceased  was  not  of  sueli  a  cliaracter  as  was  likely 
to  be  impressed  with  a  religious  sense  of  Ms  approach- 
ino;  dissolution.* 

Tiie  tc»>tiuioiiy  on  a  former  trial  of  a  witness  subse- 
quently deceased,  or  who,  having  been  duly  summoned, 
may  appear  to  have  kept  away  by  contrivance  and  col- 
lusion, or  who  may  have  become  insane  in  the  interval, 
may  be  given  in  evidence  by  a  person  who  heard  the 
deposition,  the  parties  to  the  suit  and  the  points  in 
issue  being  the  same.  As  to  the  person  by  whom  the 
former  viva  voce  testimony  may  be  proved,  the  decisions 
in  all  cases  agree  that  this  may  be  done  by  any  one  who 
heard  the  testimony,  the  judge,  counsel,  jury,  or  by- 
stander, provided  he  will,  on  his  oath,  undertake  to 
repeat  it  in  such  detail  as  the  practice  of  the  courts  may 
requii^e.  It  has  been  held  that  the  person  called  must 
undertake  to  repeat  j^i'ecisely  the  very  words  of  the 
deceased  witness,  and  not  merely  to  swear  to  their  sub- 
stance or  effect.  The  rule,  if  applied  in  that  degree  of 
strictness,  would  be  practically  useless;  for  there  are 
few  men,  if  any,  be  their  powers  of  recollection  what 
they  may,  who  could  be  qualified  to  give  such  e\ddence ; 
and  if  he  should  undertake  positively  to  swear  to  the 
very  words,  the  jury  ought  on  that  account  alone  to  dis- 
believe him.  The  doctrine  both  of  reason  and  authority 
seems  to  be  that  the  evidence  of  the  deceased  mtness 
may  1)e  proved,  if  the  person  proving  it  will  swear  that 
he  gives  the  matter  siihstantially. 

This  exception  to  the  rule  of  hearsay  evidence  may 
by  possibilit}'  apply  on  an  appeal  from  a  regimental  to 
a  general   court-martial ;    or  where  testimony  elicited 

*  Pliillipps. 


OF    EVIDENCE.  257 

before  a  court  of  inquiry  is  required  before  a  general 
court-martial ;  or  wliere  from  the  cleatli  or  sickness  of 
meml^ers  tlie  former  court  has  been  dissolved,  and  a 
new  court  being  ordered,  the  proceedings  are  commenced 
de  novo. 

Confessions.  The  confessions  of  prisoners  are  received 
in  evidence,  upon  the  presumption  that  a  jjerson  will 
not  make  an  untrue  statement  ao-ainst  his  ovn\  interest. 

o 

But  it  is  to  be  observed  that  there  may  not  unfrequent- 
\j  be  motives  of  hope  and  fear  inducing  a  person  to 
make  an  untrue  confession.  And  further,  in  conse- 
(pience  of  the  universal  eagerness  and  zeal  which  prevail 
for  the  detection  of  guilt,  when  offences  occur  of  an  ag- 
gravated character — in  consequence  also  of  the  necessity 
of  using  testimony  of  suspicious  witnesses  for  the  dis- 
covery of  secret  crimes,  the  evidence  of  confessions  is 
subject  in  a  very  remarkable  degree,  to  the  imperfec- 
tions attaching  generally  to  hearsay  evidence.''^ 

With  regard  to  the  degree  of  credit  which  ought  to 
be  attached  to  a  confession,  much  difference  of  opinion 
has  existed.  By  some,  a  free  and  voluntary  confession 
has  been  considered  as  forming  the  highest  and  most 
satisfactory  evidence  of  guilt — as  deserving  of  the  high- 
est credit  because  it  is  presumed  to  flow  from  the  higli- 
est  sense  of  guilt,  and  therefore  admissible  as  proof  of 
the  crime  to  which  it  refers.  On  the  other  hand,  it  has 
been  held  that  hasty  confessions  made  to  persons  having 
no  authority  to  examine,  are  the  weakest  and  most  sus- 
picious of  all  evidence.  Proof  may  be  too  easily  pro- 
cured, words  are  often  misreported  through  ignorance, 
inattention,  or  malice,  and  they  are  extremely  liable  to 

*  1  PhiUipps,  p.  532. 
17 


258  MILITARY   LAAV   AifD    C0URTS-3IARTIAL. 

misconstruction.  Moreover,  this  evidence  is  not,  in  the 
usual  course  of  things,  to  be  disproved  by  that  sort  of 
negative  evidence,  by  which  the  proof  of  plain  facts 
may  be  and  often  is  confronted.* 

Although  it  can  hardly  be  conceived  that  any  one 
would  make  a  fi'ee  and  voluntary  confession  of  guilt,  so 
diametrically  opposed  to  the  feelings  and  principles 
that  govern  our  actions,  if  the  facts  confessed  were 
untrue,  yet  instances  have  occurred  in  which  innocent 
persons  have  confessed  themselves  guilty  of  crimes  of 
the  gravest  character. 

Confessions  are  reducible  to  three  classes.  First^  a 
confession  in  open  court,  by  the  prisoner,  of  his  own 
guilt — this  is  conclusive,  and  no  proof  is  necessary. 
Second^  a  confession  made  before  a  magistrate;  and, 
third^  a  confession  made  to  any  other  person — this  is 
the  weakest  and  lowest  of  all,  and  often  demands  proof 
of  corroborating  cu'cumstances  to  sustain  it. 

A  voluntary  coufessiou  made  by  a  person  who  has 
committed  an  offence,  although  not  conclusive,  is  evi- 
dence against  him  upon  which  he  may  be  convicted, 
notwithstanding  the  confession  is  totally  uncorroborated 
by  other  evidence — pro\dded  the  corpus  delicti^  the  act 
constituting  the  crime,  be  proved  by  other  evidence. 

It  has  been  considered  necessaiy  in  all  cases,  previous 
to  receiving  a  confession  in  evidence,  to  inquire  whether 
it  has  been  voluntary.  The  usual  questions  are,  whether 
the  prisoner  has  been  told  that  it  would  be  better  for 
him  to  confess,  or  worse  for  him  if  he  did  not  confess, 
or  whether  any  language  to  that  effect  has  been  used. 
The  object  of  the  rule  relating  to  their  exclusion  is,  to. 

*  Roscoe,  p  38. 


OF    EVIDENCE.  259 

exclude  all  confessions  which  may  have  heen  j)rociired 
from  the  prisoner,  l)y  leading  him  to  suppose  that  it 
will  l)e  l^etter  for  him  to  admit  himself  to  be  guilty  of 
an  offence  which  he  really  never  committed.  Confes- 
sions, therefore,  Avhich  are  obtained  from  the  accused  by 
his  being  im]3roperly  oj^erated  upon,  are  incompetent 
evidence,  and  should  as  such  be  entirely  rejected  by  the 
court,  upon  the  preliminary  incpiiry  into  the  circiun- 
stances  under  which  they  are  obtained. 

The  general  rule  u2:»on  this  subject  may  be  thus 
stated :  a  promise  of  benefit  or  favor,  or  threat  or  in- 
timation of  disfavor,  connected  with  the  subject  of  the 
charge,  held  out  l)y  a  person  having  authority  in  the 
matter,  will  be  sufficient  to  exclude  a  confession  made 
in  consequence  of  such  inducement,  either  of  hope  or 
fear.  And  the  same  principle  applies,  if  the  induce- 
ment has  been  held  out  by  a  person  without  authority, 
V)ut  in  the  presence  of  a  person  who  has  such  authority, 
and  with  his  sanction  eithei*  expressed  or  implied,  who 
gives  no  caution  and  ex])resses  no  dissent. 

But  a  coiafossion  made  in  couscqiiciiee  of  aii  iiiduec?- 
meut  held  out  by  a  person  who  has  no  authority,  and 
cannot  reasonably  be  supposed  to  have  an}^,  is  not  liable 
to  the  suspicion  or  presumption  of  being  untrue,  and 
therefore  it  seems  settled,  that  under  ordinary  circum- 
stances, a  confession  is  not  to  T)e  excluded  on  account  of 
its  having  been  made  under  an  inducement  held  out  by 
such  person,  j^rovided  always  that  the  prisoner  is  aware 
that  the  person  has  no  authority  whatever. 

It  ■'■//i  Of  fid  he  cojh9/dered  that  the  confession  is  generally 
made  in  Avant  of  advisers,  under  circumstances  of  deser- 
tion by  the  world,  in  chains  and  degradation,  with  spir- 


260  iULlTAEY    LAW    AXB    COUETS-MAETIAL. 

its  sunk,  fear  j^redominant,  liope  fluttering  around,  pui'- 
poses  and  views  momentarily  changing,  a  thousand  plans 
alternating,  a  soul  tortured  with  anguish  and  difficulties 
gathering  into  a  multitude.  How  eas}^  is  it  for  the 
hearer  to  take  one  word  for  another,  or  take  a  word  in 
a  sense  not  intended  by  the  speaker !  And  for  want  of 
an  exact  representation  of  the  tone  of  voice,  emphasis, 
countenance,  eye,  manner,  and  action  of  the  one  who 
made  the  confession,  how  almost  impossible  is  it  to 
make  a  third  person  understand  the  exact  state  of  his 
mind  and  meaning.  For  these  reasons  such  evidence  is 
received  with  great  distrust,  and  under  apprehensions 
for  the  ^vi'ong  it  may  do.  Its  admissibility  is  made  to 
depend  on  its  being  free  of  the  suspicion  that  it  was  ob- 
tained by  any  threats  of  severity  or  promises  of  favor, 
and  of  every  influence,  even  the  minutest.* 

The  confession  will  not  he  excluded  even  where  undue 
influence  has  been  exerted,  if  it  has  been  made  under 
such  circumstances  as  to  create  a  reasonable  presumption 
that  the  threat  or  promise  had  no  influence,  or  had  ceased 
to  have  any  influence  upon  the  mind  of  the  party.  Thus, 
if  the  impression  that  a  confession  is  likely  to  benefit 
him  has  been  removed  from  the  mind  of  a  prisoner, 
what  he  says  will  be  evidence  against  him,  although  he 
has  been  advised  to  confess;  but  there  must  be  very 
strong  evidence  of  an  explicit  warning  not  to  rely  on 
any  expected  favor,  and  that  the  prisoner  thoroughly 
understood  such  warning,  before  his  subsequent  confes- 
sion can  be  given  in  evidence. 

Where  a  person  has  made  a  confession  in  the  hope  of 
obtaining  a  reward  or  pardon  from  government,  and  of 

*  state  vs.  Fields  and  Webber,  Peck's  Rep.,  140. 


OF    EVIDENCE.  261 

being  admitted  state's  evidence,  his  confession  is  admis- 
sible against  him,  unless  it  appear  that  at  the  time  of 
making  the  confession  he  knew  that  a  reward  had  been 
offered ;  if  he  was  aware  of  the  offer  Ijefore  he  made  the 
confession,  it  wonld  not  he  admissible. 

If  a  party  has  l)een  admitted  state'' s  evidence  and  has 
confessed,  and  upon  the  trial  refuses  to  give  evidence, 
his  own  confession  will  be  evidence  against  himself.* 

It  is  not  every  hope  of  favor  held  out  to  a  prisoner 
that  will  render  a  confession  afterward  made  by  him 
inadmissible:  the  promise  must  have  some  reference 
to  his  escape  from  the  charge.  The  threats  or  promises 
must  have  reference  to  some  temporal  advantage,  in 
order  to  invalidate  a  confession.  Where  a  prisoner 
accused  of  a  murder  had  repeated  interviews  with  a 
clergyman,  who  urged  him  to  repentance,  telling  him 
that  "  before  God  it  would  be  better  for  him  to  confess 
liis  sins,"  that  "  his  fears  respecting  his  partici2:)ation  in 
the  dreadful  deed  were  fully  confirmed,  and  that,  while 
he  was  in  that  state  of  mind,  he  (the  chaplain)  could 
affbi'd  him  no  consolation  by  prayer,"  and  subsequently 
to  tliese  exhortations,  the  prisoner  made  a  confession; 
the  judges  were  unanimously  of  opinion  that  it  was 
j)roperl3^  received  in  evidence,  and  the  prisoner  was 
executed.f 

Where  a  confession  has  been  obtained  by  artifice  or 
deception^  but  without  the  use  of  promises  or  threats,  it 
is  admissil)le.  In  one  case  artifice  was  used  to  induce 
a  prisoner  to  suppose  that  some  of  his  accomplices  were 
in  custody,  under  which  mistaken  supposition  he  made 
a  confession,  and  it  was  admitted  in  evidence.    So  \\here 

*  1  Phillipps,  551.  f  Roscoe,  -41 


262  MILITAEY    LAW   AND    COUKTS-MAETIAL. 

a  prisoner  asked  tlie  tui'iikey  if  lie  would  mail  a  letter 
for  him,  and  on  receiving  a  promise  that  he  would  do 
so,'  gave  him  the  letter ;  it  was  detained  by  the  turnkey, 
and  given  in  evidence  as  a  confession  at  the  trial. 

A  qiic»itioii  has  sometimes  arisen,  whether  a  statement 
which  has  been  made  by  a  party  upon  an  examination 
as  a  wdtness,  against  another  person  on  a  distinct  charge 
— provided  there  has  been  no  promise  of  favor  or  of  re- 
ward for  information,  nor  threats  made  to  induce  him  to 
confess — can  be  received  in  evidence  against  him,  if  he 
himself  should  be  put  upon  his  trial  for  the  same  offence. 
The  more  recent  decisions  seem  to  make  against  their 
admissibility,  at  least  where  the  prisoner  was  not  cau- 
tioned beforehand.  Although  it  is  said  by  Starkie,  that 
when  a  witness  answers  questions  upon  his  examination 
on  a  trial  tending  to  criminate  himself,  and  to  which  he 
might  have  demurred,  his  answers  may  be  used  for  all 
purposes.  By  the  Vth  amendment  to  the  constitution, 
no  person  "  shall  be  compelled,  in  any  criminal  case,  to 
be  a  witness  against  himself,"  and  tlie  G9th  article  of 
war  makes  it  the  duty  of  the  judge  advocate  to  ol)ject 
"  to  any  question  to  the  prisoner,  the  answer  to  which 
might  tend  to  criminate  himself,"  thus  barring  the  recep- 
tion of  all  compulsory  evidence  tending  to  the  crimina- 
tion of  any  individual.  Where  such  answers  are  made 
freely  and  voluntarily,  they  are,  of  coarse,  admissible 
against  him. 

Although  a  confession  obtained  by  means  of  promises 
or  threats  cannot  be  received,  yet  if,  in  consequence  of 
that  confession,  certain  facts  tending  to  establish  the 
guilt  of  the  prisoner  are  made  hioivn^  evidence  of  those 
facts  may  be  received.     Facts  thus  obtained  must  be 


OF    EVIDENCE.  263 

fully  and  satisfactorily  j^roved,  without  calling  in  the 
aid  of  any  part  of  tlie  confession  from  wliicli  tliey  Lave 
Ijeen  deri\'ed,  or  at  most  by  admitting  only  so  much  of 
the  confession  as  relates  strictly  to  the  facts  discovered 
l)y  it.  For  instance,  a  prisoner  made  a  statement  to  a 
policeman  under  circumstances  that  j^recluded  it  from 
being  given  in  evidence,  but  the  statement  contained 
some  allusion  to  a  lantern  which  was  afterward  found. 
It  was  decided  that  the  words  used  by  the  j)]'isoner  with 
reference  to  the  thing  found  ought  to  be  given  in  evi- 
dence, and  the  policeman  accordingly  stated  that  the 
prisoner  told  him  that  he  had  thrown  a  lantern  into  a 
certain  pond.  The  other  parts  of  the  statement  were 
not  received.* 

In  former  times  it  was  usual  to  admit  the  confessions 
of  prisoners,  even  of  sitcli  as  hid  afterward  been  exe. 
ciited^  as  evidence  against  others,  and  this  at  a  period 
when  torture  was  not  unfrequently  applied  in  order  to 
obtain  confessions  ;  as  upon  the  trials  of  the  Earl  of 
Essex  and  Sir  Walter  Kaleigh — in  the  latter  of  which 
Sir  E.  Coke  says,  that  the  laic  'presumes  a  man  will  not 
accuse  himself  for  the  purj)ose  of  accusing  another. 
The  rule  at  present  is,  that  a  confession  is  only  evidence 
against  the  party  himself  who  made  it,  and  cannot  be 
used  against  others.  U})on  the  same  principle,  the  con- 
fession of  the  i)rincipal  is  not  admissible  in  evidence,  to 
prove  his  guilt  upon  an  indictment  against  the  acces- 
sory. 

In  general,  a  person  is  not  answerable  criminally,  for 
the  acts  of  his  servants  or  agents^  and  tlierefoi-e  the  dec- 
larations or  confessions  of  a  servant  or  ascent  will  not 

*  Roscoc,  51. 


264  MILITARY    LAW    AND    COUKTS-MAIITIAL. 

be  evidence  against  him.  But  it  is  otherwise  w^here 
the  declaration  relates  to  a  fact  in  the  ordinary  course 
of  the  agents'  employment,  in  which  case  such  declara- 
tions accompanying  an  act  done,  will  be  e\'idence  in  a 
criminal  proceeding,  as  well  as  in  a  civil  suit. 

In  criminal  as  well  as  in  civil  cases,  tiie  Aviiole  of  an 
admission  or  confession  made  by  a  party  is  to  be  given 
in  evidence.  The  rule  does  not  exclude  a  confession 
where  only  part  of  what  the  defendant  said  has  been 
overheard.  And  if  a  prisoner,  in  speaking  of  the  testi- 
mony of  one  who  had  testified  against  him,  says,  that 
"  what  he  said  was  true  so  far  as  he  went,  but  he  did 
not  say  all  or  enough ;"  this  is  not  admissible  as  a  con- 
fession, nor  does  it  warrant  j)roof  of  what  the  witness 
did  swear  to.  There  is  no  doubt  that  if  a  prosecutor 
uses  the  declaration  of  a  prisoner,  he  must  take  the 
whole  of  it  together,  and  cannot  select  one  j^tart  and 
leave  another.  But  if,  after  the  whole  of  the  statement 
of  the  prisoner  is  given  in  evidence,  the  prosecutor  is  in 
a  situation  to  contradict  any  part  of  it,  he  is  at  liberty 
to  do  so,  and  then  the  statement  of  the  prisoner  and  the 
whole  of  the  other  evidence  must  be  left  to  the  jury  for 
their  consideration,  precisely  as  in  any  other  case  where 
one  part  of  the  evidence  is  contradictory  to  another.  It 
must  not,  however,  from  this,  be  supposed  that  every 
pai't  of  a  confession  is  entitled  to  equal  credit.  A  jury 
may  believe  that  which  charges  the  prisoner,  and  i-eject 
that  which  is  in  his  favor,  if  they  see  sufiicient  grounds 
for  so  doing.  Thus,  a  prisoner  charged  with  murder 
stated  in  his  confession  that  he  was  j^resent  at  the  mur- 
der, which  was  committed  by  another  2:>erson,  and  that 
he  took  no  part  in  it ; — the  judge  left  the  confession  to 


OF    EVIDENCE.  265 

the  jury,  saying  :  "  It  must  be  taken  a.cogetlier,  and  it 
is  evidence  for  the  prisoner  as  well  as  against  him ;  still 
the  jury  may,  if  they  think  proper,  believe  one  part  of 
it,  and  disl relieve  another."  Also,  if  a  person  in  making 
an  admission  against  his  own  interest  refers  to  a  written 
paper,  without  which  the  admission  is  not  complete,  the 
contents  of  the  paper  ought  to  be  shown  before  the 
statement  can  be  used  as  evidence  asrainst  him. 

o 

An  admission  on  the  part  of  the  prisoner  is  not  con- 
clusive, and  if  it  afterward  appear  in  evidence  that  the 
fact  was  otherwise,  the  admission  will  be  of  no  wei^-ht. 
Thus  upon  an  indictment  for  bigamy,  where  the  pris- 
oner had  admitted  the  first  marriage,  and  it  appeared  at 
the  trial  that  such  marriage  was  void  for  want  of  con- 
sent of  the  guardian  of  the  woman,  the  prisoner  was 
acquitted.  Such  are  confessions  of  matters  void  in 
point  of  law,  or  false  in  fact. 

Where  a  confession  has  been  taken  in  writing,  the 
document  must  be  produced.  But  a  written  examina- 
tion \\'ill  not  exclude  proof  of  a  confession  made  previ- 
ously or  subsequently,  to  the  prosecutor  or  any  other 
person. 

For  the  purpose  of  introducing  a  confession  in  evi- 
dence, it  is  unnecessary,  in  general,  to  do  more  than 
negative  an}'  j)romise  or  inducement  held  out  by  the 
person  to  whom  the  confession  was  made.  If  there  be 
any  probable  ground  to  suspect  that  an  officer,  in  whose 
custody  a  prisoner  has  previously  been,  has  ])een  guilty 
of  collusion  in  obtaining  a  confession,  such  suspicion 
ought  to  be  removed  in  the  first  instance  by  the  prose- 
cutor calling  such  officer.* 

*  Roscoe,  58. 


266  MILITARY    LAW    AND    COURTS-MAKTIAL. 

Of  the  Exeliisioii  of  Secondary  Evidence,  and  of  the 
Rule  which  requires  the  best  Evidence  to  be  given. 

The  law  excludes  sucli  evidence  of  facts  as,  from  the 
nature  of  the  thing,  supposes  still  better  evidence  be- 
hind, in  the  party's  possession  or  power. 

The  principle  of  the  rule  under  consideration  is 
founded  on  the  presumption  that  there  is  something  in 
the  better  evidence  which  is  withheld,  which  would 
make  against  the  party  resorting  to  inferior  evidence. 
Although  in  some  instances,  this  presumption  may  not 
be  very  strong,  yet  the  general  effect  of  the  rule  is,  to 
prevent  fraud,  and  to  induce  parties  to  bring  before  a 
court  or  jury  the  kind  of  evidence  which  is  least  calcu- 
lated to  perplex  or  mislead  them.  The  present  rule  is 
satisfied  by  the  production  of  the  best  attalnahle  evi- 
dence. In  requiring  the  production  of  the  best  evidence 
applicable  to  each  particular  fact,  it  is  meant  that  no 
evidence  of  a  nature  merely  substitutionary  shall  be  re- 
ceived when  the  primary  evidence  is  producible.  By  sub- 
stitutionary evidence  is  meant,  such  evidence  as  implies 
the  existence  of  primary  or  more  original  information. 

Where  there  is  no  substitution  of  evidence,  l)ut  only 
a  selection  of  weaker  for  stronger  proofs,  or  an  omis- 
sion to  supply  all  the  proofs  capal)le  of  l)eing  produced, 
the  rule  is  not  infringed ;  the  rule  of  law  does  not  re- 
quire the  strongest  possible  assurance  of  a  fact — in 
other  words,  it  does  not  require  a  repetition  of  evidence 
beyond  that  which  is  sufficient  to  establish  the  fact.  So 
if  an  overt  act  of  mutiny  should  be  witnessed  l)y  fifty 
persons,  the  law  wdll  1)e  satisfied  by  the  production  of  a 
part  only  of  the  persons  present,  and  one  or  more  would 
be  as  sufficient  to  prove  it  as  the  entire  number.     In 


OF  EVIDENCE.  267 

such  a  case  the  best  possible  evidence  would  have  been 
produced,  though  not  the  strongest  possil^Ie  assurance. 
Sufficient  evidence  is  what  the  law  requires,  and  not  an 
accumulation  of  identical  evidence ;  hence  the  testimony 
of  one  credible  witness  is  sufficient  to  prove  a  fact,  not 
admitting  of  further  proof,  except  in  cases  where  the 
I'dw  has  designated  a  different  rule,  as  in  the  case  of  false 
muster,  the  15th  article  of  war  prescribes  two  witnesses 
as  necessary  to  conviction. 

In  cases  where  the  pinvaey  of  the  offence  has  excluded 
the  possibility  of  further  proof,  and  where  no  facts  have 
been  proved  to  exist,  tending  to  place  in  doulit  the  credi- 
bility of  the  complainant,  courts-martial  have  admitted 
the  testimony  of  the  complainant  alone,  as  sufficient  for 
con^dction.  McArthur*  reports  a  case  of  a  nav^al  lieu- 
tenant who  was  tried  on  charges  preferred  by  his  cap- 
tain, and  among  others,  for  going  into  the  captain's 
cabin,  when  alone  at  tea,  and  calling  him  scoundrel  and 
liar.  The  privacy  of  the  offence  excluded  all  other 
positive  evidence  but  that  of  the  complainant,  which  was 
admitted,  and  the  lieutenant  was  dismissed  the  service. 

If  the  law  were  in  every  case  peremptorily  to  require 
two  witnesses,  this  would  by  no  means  insure  the  dis- 
covery of  truth,  but  would  infalli])ly  obstruct  its  disclos- 
ui*e,  ^vllerever  the  facts  were  known  only  to  a  single 
witness.  It  is  therefore  held,  that  there  can  be  no  d()ul)t 
of  th£  Ugal  siifficiem-y  of  one  ivitnes-s  to  justify  conviction^ 
if  the  e\adence  of  such  witness  be  entitled  to  full  credit. 

The  best  evidence  is  distinguished  as  primary — the 
inferior  e\'idence  is  usually  termed  secondary,  it  not  be- 
ing original  or  primaiy. 

*  2  McArthur,  56. 


268  MILITARY    LAW    AND    COURTS-MAETIAL. 

PRIMARY   EVIDENCE. 

Written  iii«>itruineiit§.  As  a  general  rale  the  contents 
of  a  written  instrument  can  only  be  proved  by  the  pro- 
duction of  the  instrument  itself,  parol  evidence  of  them 
being  of  a  secondary  or  inferior  nature.  But  this  rale 
is  not  without  many  exceptions.  In  general,  whenever 
there  exists  a  ^vintten  document,  which  by  the  policy  of 
the  law  is  considered  to  contain  the  evidence  of  certain 
facts,  that  document  is  regarded  as  the  best  evidence  of 
the  facts  which  it  records ;  and  unless  it  he  in  the  posses- 
sion of  the  opposite  party,  and  notice  has  been  given  to 
him  to  produce  it,  or  it  be  proved  to  be  lost  or  destroyed, 
secondary  evidence  of  its  contents  is  not  admissible. 
This  rule  is  of  frequent  application  in  courts-martial 
with  reference  to  written  orders,  letters,  &c. 

Upon  the  same  principle  the  records  of  courts  of 
justice  existing  in  v^^iting,  are  primar}^  evidence  of  the 
facts  there  recorded.  This  rule  finds  application  in 
military  tribunals,  where  the  proceedings  of  a  court  of 
inquiry,  for  instance,  are  admitted  as  evidence  before 
a  court-martial. 

Although  matters  of  record  and  proceedings  of  courts 
of  justice  when  committed  to  writing,  cannot  be  proved 
by  parol,  they  may  he  proved  hy  examined  copies^  a  rale 
founded  upon  a  principle  of  general  convenience.  In  the 
same  manner,  examined  copies  of  puUic  books  are  ad- 
missible without  producing  the  originals.  This  rale  is 
applicable  to  office  books  of  an  official  character  when 
called  for  l)efore  a  court-martial.  But  no  sucli  rule  ex- 
ists with  regard  to  private  documents,  there  being  no 
inconvenience  in  reouiring  their  pi-oduction. 


PRIMAEY    EVIDENCE.  269 

It  may  l)e  laid  down  as  a  riile,  that  tlie  adi)iission6' 
of  a  lyai'ty  are  competent  evidence  against  himself  only 
in  cases  where  j^arol  evidence  would  l)e  admissible  to 
establish  the  same  facts,  or,  in  other  words,  where  there 
is  not,  in  the  judgment  of  the  law,  higher  and  ])etter 
evidence  in  existence  to  be  produced.  It  would  be  a 
dangerous  innovation  upon  the  rules  of  evidence,  to 
give  any  greater  effect  to  confessions  or  admissions  of  a 
party,  unless  in  open  court^  and  the  tendency  would  be 
to  dispense  with  the  j)roduction  of  the  most  solemn 
documentary  evidence.  It  is  not,  however,  necessary  in 
every  case  where  the  fact  that  is  to  be  proved  has  been 
committed  to  writing,  that  the  writing  should  be  pro- 
duced. Facts  may  he  proved  hij  parol^  though  a  narra- 
tive of  them  may  exist  in  writing.  Thus  a  person  who 
pays  money  may  prove  the  fact  of  payment  without 
producing  the  receipt  ^vliicli  he  took ;  but  parol  evidence 
that  a  receipt  given,  acknowledged  that  the  money  w^as 
in  full  payment,  is  inadmissible,  when  the  receipt  is  in 
existence  and  no  measures  have  been  taken  to  procure 
it.  So  a  person  who  takes  notes  of  a  conversation  need 
not  produce  them  in  proving  the  conversation. 

In  the  case  oi  printed  documents,  all  the  impressions 
are  originals,  or  in  the  nature  of  duplicate  originals,  and 
any  copy  will  be  primary  evidence.* 

Handwriting;.  In  proving  handwriting,  the  evidence 
of  third  persons  is  not  inferior  to  that  of  the  party  him- 
self. Such  evidence  is  not  in  its  nature  inferior  or  second- 
ary, and  though  it  may  generally  be  true  that  a  writer  is 
best  acquainted  with  his  oww  handwriting,  and  therefore 
his  evidence  will  'Generally  be  thought  the  most  satis- 

Roscoe,  1-4. 


270  MILITARY   LAW    AOT)    C0UETS-3IAETLAL. 

factory,  yet  his  knowledge  is  acquired  precisely  by  the 
same  means  as  the  knowledge  of  other  persons,  who 
have  been  in  the  habit  of  seeing  him  write,  and  differs 
not  so  much  in  kind  as  in  degree.  The  testimony  of 
such  persons  therefore,  is  not  of  a  secondary  species,  nor 
does  it  give  reason  to  suspect,  as  in  the  case  where  pri- 
mary evidence  is  withheld  that  the  fact  to  which  they 
speak  is  not  true.  K  the  evidence  of  third  persons  be 
admissible  to  j)rove  handwriting,  it  seems  necessarily 
to  follow  that  it  is  equally  admissible  for  the  purpose  of 
disproving  it,  the  question  of  genuine  or  not  genuine  be- 
ino^  the  same  in  both  cases.* 

The  simplest  and  most  oi)vioii§  proof  of  iiaudwriting, 
is  the  testimony  of  a  witness  who  saw  the  paper  or  sig- 
natiu'e  actually  written.  But  where  such  a  direct  kind 
of  evidence  cannot  possibly  be  procured,  the  best  which 
the  nature  of  the  case  admits  is  the  information  of  ^vit- 
nesses  acquainted  with  the  supposed  wi'iter,  who,  from 
seeing  him  write,  have  acquired  a  knowledge  of  his 
handwi'iting ;  for  in  every  person's  manner  of  ^\Titing, 
there  is  a  certain  distinct  prevailing  character  which 
may  be  discovered  by  observation,  and  when  once  known, 
may  be  afterward  applied  as  a  standard  to  try  any 
other  specimen  of  writing  ^vhose  genuineness  is  dis- 
puted. A  witness  may  therefore  be  asked,  whether  he 
has  seen  a  particular  person  ^viite,  or  whether  he  is 
acquainted  with  his  handwi'iting,  and  his  opportunities 
for  becoming  so  acquainted,  and  afterward,  whether  he 
believes  the  paper  in  dispute  to  be  his  handwriting. 
This  course  of  examination  evidentl}'  involves  two  ques- 
tions ;  fii'st,  whether  the  supposed  writer  is  the  person  of 


PEIMAEY    EVIDENCE,  271 


whom  the  witness  speaks — a  question  of  identity ;  and, 
secondly,  if  he  be  the  person,  whether  he  wrote  the 
paper  in  disj^nte — a  question  of  judgment,  or  a  com- 
parison in  the  mind  of  the  witness  between  the  general 
standard  and  the  writing  produced.  '  All  evidence  of 
handwriting,  except  when  the  witness  has  seen  the  doc- 
ument actually  Avritten,  is  in  its  nature  comparison.  It 
is  the  hellef  which  a  witness  entertains,  iq^on  comparing 
the  writing  in  question  with  an  exemplar  in  his  mind, 
derived  from  some  previous  knowledge. 

This  kind  of  evidence,  like  all  probable  evidence,  ad- 
mits of  every  2'>ossible  degree^  from  the  lowest  presmnp- 
tion  to  the  highest  moral  certainty.  It  may  be  so  weak 
as  to  be  utterly  unsafe  to  act  upon ;  or  so  strong  as  to 
produce  conviction  in  the  mind  of  any  reasonable  man. 
The  witness  may  have  been  in  the  constant  habit  of 
seeing  the  person  write,  day  by  day,  for  years  together ; 
or  he  may  have  seen  him  ^mte  (mly  a  few  words  years 
ago ;  or  the  specimens  he  saw  may  have  been  slight  and 
imperfect,  A\Titten  in  a  hurry,  <fec.,  but  whatever  degree 
of  weight  his  testimony  may  deserve,  it  is  an  established 
rule  that  if  he  speaks  of  handwriting  fi'om  having  seen 
the  person  write,  he  is  competent,  though  he  never  saw 
him  wi'ite  but  once. 

Witnesses  Avill  frequently  express  the  weaker  de- 
grees of  belief  in  their  minds,  by  saying  they  are  of 
opinion.,  or  they  tliiiik  j  in  such  a  case  the  evidence  of  a 
witness  who  has  seen  a  person  ^^Tite  is  receivable.  The 
language  which  a  -witness  adopts  in  such  cases  varies 
accordinii!-  to  the  hal)its  of  the  individual,  and  to  the 
want  of  precision  in  the  terms  used  for  expressing  the 
various  degrees  of  con\4ctiou  in  the  mind,  and  therefore 


272  MILITARY    LAW    AND    COUllTS-MAETIAL. 

it  is,  that  tlie  testimony  of  a  witness  is  lield  admi^^sible 
thougli  lie  may  not  swear  positively  to  liis  l^elief,  in 
words. 

Aiiotlicr  iiietliod  of  acquiring  a  knoi;vledgc  of  hand- 
^Ti'iting,  is  by  means  of  a  written  correspondence.  If  a 
witness  lias  received  letters  of  sucli  a  nature  as  makes 
it  probable  tliat  tliey  were  written  by  the  hand  from 
which  they  profess  to  come,  he  may  be  admitted  to 
speak  to  that  person's  handwriting.  It  is  essential  that 
the  identity  of  the  correspondent  whose  letters  have 
been  received  with  the  party  whose  handwriting  is  to 
be  j^roved,  should  l)e  established,  either  by  the  Avitness 
who  received  the  letters,  or  by  other  reasonable  evi- 
dence. If  this  point  is  clearly  j)roved,  the  witness  will 
frequently  be  able  to  give  more  satisfactory  evidence 
than  one  who  has  seen  the  person  in  the  act  of  writing; 
for  the  latter  may  have  seen  him  ^vi'ite  but  seldom, 
while  the  other  may  have  had  frequent  oj^portunities  of 
reperusing  the  letters,  and  the  letters  themselves  will 
probably  have  more  consistency,  and  exhibit  a  fairer 
specimen  of  the  general  character  of  the  handwriting. 

A  witness  will  not  be  allowed  to  state  his  belief  as  to 
a  piece  of  hand^vriting  being  that  of  a  particular  indi- 
vidual, where  that  belief  is  the  result  of  a  comparison  of 
the  disputed  writing  with  another  written  specimen  of 
the  same  individual  produced  in  coiu't.  The  best  reason 
for  rejecting  such  a  comparison  is,  that  the  writings  in- 
tended as  sj)ecimens  to  be  compared  with  the  disputed 
paper,  would  be  brought  together  hy  a  i:)arty  to  the 
suit,  who  is  interested  to  select  such  wTitings  only  as 
may  best  serve  his  purpose.  Besides,  if  such  compari- 
sons were  allowed,  it  would  open  the  door  to  the  admis- 


PEDIAKY    EVIDENCE.  273 

sion  of  a  great  deal  of  collateral  evidence,  as  in  every 
case  it  would  be  necessary  to  go  into  distinct  evidence 
to  prove  eacli  specimen  produced  to  he  genuine.  Upon 
a  question  respecting  the  identity  of  liandwriting,  the 
court  may  take  other  papers  which  have  been  proved  to 
be  the  writing  of  the  party — provided  they  are  part  of 
the  proofs  in  the  case — and  comj^are  them  with  the  dis- 
puted WT^iting,  for  the  purpose  of  forming  their  opinion 
whether  the  disputed  writing  is  genuine.  The  papers 
being  parts  of  the  ijroofs  hi  the  case^  are  free  from  all 
suspicion  of  undue  selection,  and  the  comparison  of  the 
coiu't  would,  in  many  cases,  be  a  better  mode  of  ascer- 
taining the  truth  than  the  evidence  of  witnesses  sj)eak- 
ing  to  handwriting  from  their  memory. 

It  is  a  settled  rule  that  where  the  antiquity  of  a  writ, 
ing  purporting  to  bear  a  person's  signature,  makes  it 
impossible  for  a  witness  to  swear  that  he  has  ever  seen 
the  party  write,  it  is  sufficient  that  he  should  have  be- 
come acquainted  with  his  manner  of  signing  his  name, 
by  inspecting  other  ancient  ^vi'itings  which  bear  his  sig- 
nature, provided  these  ancient  writings  have  been  treat- 
ed and  regularly  preserved  as  authentic  documents.  A 
witness  is  therefore  asked  whether  he  has  inspected  such 
ancient  writings  in  order  to  acquire  a  knowledge  of  the 
character  of  the  handwriting ;  and  then,  whether  he 
believes  the  writing  in  question  to  be  of  the  same  char- 
acter. These  are  extraordinary  instances  arising  from 
the  necessity  of  the  case. 

When  the  genuineness  of  a  signature  is  questioned, 
the  evidence  of  a  witness,  who  from  habit  and  practice 
has  acquired  exjjerience  and  skill  in  judging  of  the  gen- 
uineness of  handwriting^,  and  who  states  his  belief  that 
18 


274  MILITAKY    LAW    AND    C0URTS-:MARTIAL. 

a  particular  A\Titing  is  in  an  imitative  style  and  forged, 
a23pears  to  be  strictly  admissible,  altbougli  lie  is  not 
acquainted  with  the  lland^mting  supposed  to  be  imi- 
tated. But  many  decisions  have  given  little  or  no 
weight  to  such  testimony.* 

Proof  of  Negative,  when  not  Necessary.  In  prosecu- 
tions where  it  is  necessary  to  j^rove  that  tbe  act  with 
which  the  prisoner  is  charged,  was  done  without  the 
consent,  or  against  the  will  of  some  other  person — as  in 
a  charge  of  absence  without  leave — it  is  not  in  general 
indispensably  necessary  to  call  that  person  as  a  witness 
on  the  part  of  the  prosecution,  in  order  to  prove  the 
negative,  namely,  that  he  did  not  give  his  consent.  It 
is  now  settled  that  the  want  of  consent  may  be  proved 
in  other  ways. 

Persons  Acting  in  a  Public  Capacity.  Where  persons 
acting  in  a  j^ublic  capacity  have  been  appointed  by  in- 
struments in  writing,  those  instruments  are  not  consid- 
ered the  primary  evidence  of  the  appointment,  but  it  is 
sufficient  to  show  that  they  have  publicly  acted  in  the 
capacity  attributed  to  them.  And  where  a  party  is 
charged  as  bearing  some  particular  character,  the  fact  of 
his  having  acted  in  that  character,  or  his  admission  of 
the  fact,  will  be  sufficient  evidence,  without  reference  to 
his  appointment  being  in  Avriting.  Upon  a  charge  of  dis- 
obedience of  orders,  it  is  sufficient  to  show  that  in  the 
knowledge  of  the  accused  the  officer  giving  the  order 
had  previously  acted  in  the  capacity  of  a  superior.  On 
a  charge  of  desertion  or  other  military  offiince,  it  is  suf- 
ficient to  prove  that  the  accused  received  the  i)ay,  and  did 
the  duties  of  a  soldier,  without  proving  his  enlistment. 

*  2  PliiUipps,  pp.  595-603. 


SECONDARY    EVIDENCE.  275 


SECOND AKY  EVIDENCE. 


If  a  party  intends  to  use  a  written  instrument,  he 
ouglit  to  produce  the  original  if  he  has  it  in  his  posses- 
sion ;  he  cannot  give  secondary  evidence  of  writings 
until  all  the  sources  of  primary  evidence  are  exliausted. 
And  it  is  an  established  rule,  that  all  originals  must  be 
accounted  for,  before  secondary  evidence  can  be  given 
of  any  one.  If  the  instrument  is  in  the  possession  of 
the  adverse  party,  there  are  in  general  no  means  of  com- 
pelling him  to  produce  it,  however  necessary  it  may  be 
for  the  prosecution  of  the  suit  or  for  the  defence,  and  if 
tlie  party  will  not  produce  it,  secondary  evidence  of  its 
contents  is  then  admissible.  But  before  such  evidence 
can  be  admitted,  it  must  be  shown  affirmatively  that 
the  instrument  is  i:i  the  possession  of  the  adverse  party, 
and  also  that  he  has  received  notice  to  produce  it.^ 

Proof  of  Writing  being  in  Po»i«se!>if>iion  of  Adverse  Party. 
The  degree  of  e^ddence  which  may  be  necessary  to  prove 
the  fact  of  possession,  will  depend  so  much  on  the  nature 
of  the  transaction  and  on  the  particular  circumstances 
of  each  individual  case,  that  it  is  scarcely  possible  to 
lay  do^\'Ti  any  general  rule  on  the  subject. 

Possession  is  frequently  presumed  from  the  nature  of 
the  paper,  as  well  as  other  circumstances  indicative  of 
its  place  of  custody.  The  incpiiry,  in  the  first  instance, 
may  generally  be  detemiined  by  ascertaining  to  whom 
the  possession  rightfully  belongs ;  for  in  the  absence  of 
proof  to  the  contrary,  the  law  Avill  presume  tliat  tlie 
person  entitled  holds  the  custody. 

AMiere  a  paper  is  in  the  hands  of  a  person  acting  in 

*  2  Phillipps.  510. 


276  MILITAKY    LAW    AND    COUKTS-MAETIAL. 

an  independent  cliaracter,  and  wlio  lias  a  rigM  to  the 
possession  of  it,  notice  to  the  party  is  snfficient. 

Where  a  document  lias  been  traced  into  the  posses- 
sion Q)i^])ai'ty  to  the  ca-s-e,  it  lies  nj^on  him  to  show  that 
he  has  lawfully  parted  with  it.  But  this  rule  does  not 
appl}',  where  the  party  has  voluntarily  parted  with  the 
possession  of  a  document  after  having  recei\'ed  notice 
to  produce  it. 

In  certain  cases,  where  the  written  instrument  is  in 
the  j^ossession  of  a  third  person,  yet  if  there  is  privity 
between  such  third  person  and  the  l^arty,  it  is  deemed 
to  be  virtually  in  his  possession,  and  therefore  a  notice 
to  produce  given  to  the  party  himself,  will  be  sufficient. 

1%'otice  to  Produce.  It  does  not  follow,  that  on  proof 
of  the  notice  the  party  is  compellable  to  give  evidence 
against  himself;  or  that,  if  he  refuses  to  produce  the 
paper  rec^uired,  such  a  circumstance  is  to  be  considered 
as  conclusive  against  him ;  l)ut  the  consequence  will  be, 
that  the  other  party,  who  has  done  all  in  his  j^ower  to 
supply  the  best  evidence,  will  be  allowed  to  go  into  evi- 
dence of  an  inferior  kind,  and  may  read  an  examined 
copy,  or  give  parol  evidence  of  the  contents. 

The  notice  to  produce  should  refer  to  the  documents 
required  with  sufficient  particularity ;  but  if  there  is  no 
reasonable  doubt  that  the  party  receiving  the  notice 
must  have  Ijeen  aware  of  the  particular  instrument  in- 
tended to  be  produced,  that  is  sufficient. 

It  is  not  necessary  that  a  notice  to  produce  should  be 
in  writing ;  and  if  a  notice  by  parol  and  in  writing  be 
given  at  the  same  time,  it  is  sufficient  to  prove  the  parol 
notice  alone. 

It  is  sufficient  to  serve  the  notice  upon  the  party  him- 


SECONDARY    EVIDENCi:.  277 

self,  or  Lis  counsel,  or  upon  Lis  servant  at  liis  quarters. 
And  tLe  notice  must  be  given  witLin  a  reasonable  time 
— tLe  court  deciding  wLetLer  it  Las  been  given  witLin 
reasonable  time  or  not ;  and  tLis  must  depend  upon  the 
vircmustances  of  eacL  particular  case. 

If  a  party  after  receiving  notice  to  produce  a  paper 
wLicL  is  in  Lis  possession,  refuses  to  do  so,  Le  places  tLe 
otLer  party  under  tLe  difficulty  of  proving  tLe  contents 
by  some  secondary  proof,  and  witLLolds  from  tLe  court 
tLe  original  and  most  autLentic  evidence.  He  cannot,  after 
tliis,  give  in  evidence  tLe  original,  for  tLe  purpose  of  con- 
tradicting tLe  secondary  proof  wLicL  Las  been  received. 

TLe  regular  time  of  calling  for  tLe  production  of  pa- 
pers, is  not  until  tLe  party  wLo  requires  tLem  Las  en- 
tered upon  Lis  case ;  till  tLat  period  arrives,  tLe  otLer 
party  may  refuse  to  produce  tLem,  and  tLere  can  be  no 
cross-examination  as  to  tLeir  contents,  altliougL  tLe  no- 
tice to  jiroduce  tLem  is  admitted.* 

Notice  to  produce^  when  (ii»ipeii*$e<i  Avitii.  WLere,  from 
tLe  nature  of  tLe  prosecution,  tLe  prisoner  must  be 
aware  tLat  Le  is  cLarged  witL  tLe  possession  of  tLe 
document  in  question,  a  notice  to  produce  it  is  unneces- 
sary. So  wLere  tLe  prisoner  was  proved  to  Lave  said 
tLat  Le  Lad  destroyed  tLe  document  in  question,  it  was 
Leld  to  be  unnecessary  to  prove  any  notice  to  produce, 
so  as  to  let  in  secondary  evidence  of  its  contents.  No- 
tice to  produce  is  not  required,  wLere  tLe  paper  offered 
in  e\ddence  is  a  duplicate  original ;  for  in  sucli  a  case, 
tLe  evidence  offered  is  primary  evidence.  However,  it 
seems  now  to  be  tLe  better  opinion,  tLat  neitlier  party 
will  be  allowed,  eitLer  in  tLe  examination  in  cLief  or  in 

*  2  riiillipps,  520-538.     Roscoe,  9-11. 


278  MILITARY    LAW    AND    COURTri-SlAKTlAL. 

cross-examination,  to  inquire  into  the  contents  of  a  docu- 
ment, merely  because  tlie  opposite  party  has  the  original 
in  his  possession  in  court  at  the  time  of  the  trial,  and 
declines  to  produce  it ;  and  that  the  opposite  party  may 
object  to  such  parol  evidence  of  the  contents,  on  account 
of  his  not  having  received  a  previous  notice  to  produce 
the  original. 

AYhere  a  writing  is  fi'om  its  nature  not  capable  of 
being  transported  from  place  to  place,  as  in  the  case  of 
inscriptions  or  notices  fixed  on  walls,  tombstones,  boards 
and  the  like,  secondary  evidence  of  the  inscri]3tion  will 
be  received.  But  the  principle  of  this  exception  only 
applies  to  cases  where  the  writing  is  a  fixture.  So  where 
a  docimient  is  of  a  public  nature,  a  copy  of  it  is  evidence ; 
the  production  of  the  original  is  dispensed  with  on  the 
ground  of  inconvenience,  and  on  the  fact  that  the  easy 
detection  of  fraud  diminishes  the  probal^ility  of  it. 

Secondary  evidence  is  also  admissible  of  writings 
which  are  j)roved  to  have  been  destroyed^  or  which  can- 
not be  found  after  due  inquiry.  What  shall  be  consid- 
ered due  inquiry  must  depend  on  the  particular  circum- 
stances of  the  case,  especially  upon  the  im2:)ortance  of 
the  instrument  and  the  usage  or  practice  which  may 
exist  respecting  the  custody  of  such  documents. 

The  question  as  to  the  sufficiency  of  the  search  being 
preliminary  to  the  admissibility  of  the  secondary  evi- 
dence, it  must  be  shown,  in  general,  that  there  has  been 
a  diligent  search  made,  such  as  the  case  naturally  sug- 
gests ;  and  the  search  must  appear  to  have  been  made 
in  the  proj^er  place — the  place  ^vhere  the  paper  was 
likely  to  be  found. 

In  the  case  of  a  useless  docunwnt,  the  presumption  is 


PllESUMPTIVE    EVIDENCE.  2*79 

tliiit  it  lias  been  destroyed.  And  where  the  loss  or  de- 
struction of  a  paper  may  almost  be  presumed,  very 
slight  evidence  of  such  loss  or  destruction  is  sufficient. 
Proof  by  witness  that  the  i)aper  in  question  was  thrown 
aside  as  useless,  and  that  he  believes  it  to  be  lost  or 
destroyed,  will  be  sufficient  to  let  in  secondary  evidence. 

Where  a  2:)erson  has  interest  in  destroying  a  paper,  its 
destruction  will  be  j)resuraed  on  very  slight  testimony. 
The  law,  it  has  been  held,  presumes  that  an  accomplice 
will  destroy  a  letter  serving  to  imj^licate  him  as  such. 

When  it  is  the  duty  of  the  part}'  in  possession  of  a 
document  to  dtposlt  it  in  a  particular  place,  and  it  is 
not  found  in  that  place,  the  presumption  is  that  it  is 
lost  or  destroyed. 

When  the  paper  was  in  the  possession  of  ^  party  who 
is  dead,  his  declarations  as  to  its  loss  or  destruction,  are 
admissible  after  his  death.  When  the  party  in  whose 
})ossession  the  instrument  ^vas,  is  alive,  his  declarations 
are  inadmissible,  and  he  ought  to  ])e  called  as  a  witness. 

As  to  degrees  of  secondary  evidence,  it  is  held  thaj; 
when  the  original  is  lost  and  there  is  a  counterpart,  the 
latter  should  be  accounted  for  before  inferior  evidence 
is  admissible.  But  after  the  loss  of  the  different  ])ai*ts 
are  proved,  or  these  are  shown  to  be  unattainable,  then 
examined  copies,  or  the  parol  evidence  of  witnesses,  may 
be  resorted  to.* 

PRESUMPTIVE  EVIDENCE. 

We  have  thus  far  considered  some  of  the  general  rules 
which  have  been  adopted  in  courts  of  law  relative  to 
the  exclusion  of  evidence.      It  is  now  pro])os('d  to  treat 

*  2  Pliillipps,  550-568 ;  Roscoe,  12,  13;  Starkie,  439. 


280  MILITARY    LAW    AND    COUETS-MAKTIAL. 

of  the  nature  or  quality  of  evidence ;  more  especially 
with  regard  to  ])resumptive  or  circwmstantial  proof,  as 
contradistinguislied  from  direct  proof. 

Definition.  Where  the  fr,  -ts  proved  are  not  the  pre- 
cise f^icts  in  issue,  and  the  com^t  is  to  come  to  a  con- 
clusion upon  the  facts  in  issue  by  an  act  of  reasoning 
from  those  other  proved  facts,  the  evidence  in  such  a 
case  is  said  to  he pre-s-iunptive. 

A  presumption  of  a  fact  is  properly  an  inference  of 
that  foct  from  other  facts  that  are  known.  When  the 
fact  itself  cannot  be  proved,  that  which  comes  nearest 
to  the  proof  of  the  fact  is  the  proof  of  the  circumstances 
that  necessarily  and  usually  attend  such  fact,  and  these 
are  called  presumptions  and  not  proofs  ;  for  they  stand 
instead  of  the  proofs  of  the  fact  till  the  contrary  be 
proved.  Where  a  man  is  discovered  suddenly  dead  in 
a  room,  and  another  is  found  running  out  in  haste  with 
a  bloody  sword,  it  is  a  violent  presumption  that  he  is 
the  murderer,  for  the  blood,  the  weapon,  and  the  hasty 
flight,  are  all  the  necessary  concomitants  of  such  facts ; 
and  the  next  proof  to  the  sight  of  the  fact  itself  is  the 
proof  of  those  circumstances  that  usually  attend  such 
facts.  The  circumstances  should  be  strong  in  themselves, 
should  each  of  them  tend  to  throw  light  upon,  and  to 
prove  each  other,  and  the  result  of  the  whole  should  be 
to  leave  no  doubt  upon  the  mind  that  the  offence  has 
been  committed,  and  that  the  accused  and  no  other 
could  be  the  person  who  committed  it.  That  the  fact  to 
be  inferred  often  accompanies  the  fact  proven  is  not 
sufficient ;  it  should  most  usnally  accompany  it ;  and  it 
might  be  said,  in  the  absence  of  all  circumstances,  that  it 
should  rarely  other-\\ase  happen. 


PRESUMPTIVE    EVIDENCE.  281 

The  force  of  presuinption.s  is  almost  intuitively  per- 
ceived by  maiikincl;  and  tliat  princij^le  of  the  mind 
wliich  prepares  it  to  expect  the  futui'e  association  of  cir- 
cumstances, because  it  has  been  accustomed  to  find  them 
associated,  cannot  be  accounted  for,  except  by  setting  it 
down  as  imposed  upon  us  by  the  laAV  of  nature. 

"What  oircunistanci's  will  aiiioiiiit  to  proof  can  never 
l)e  matter  of  o-eneral  definition.  The  lecfal  test  is,  the 
sufficiency  of  the  evidence  to  satisfy  the  understanding 
and  conscience  of  the  jury.  On  the  one  hand,  absolute, 
metaphysical  and  demonstrative  certainty,  is  not  essen- 
tial to  proof  T)y  circumstances.  It  is  sufficient  if  they 
produce  moral  certaint}',  to  the  exclusion  of  every  rea- 
sonable doubt.  Even  dh'ect  and  positive  testimony  does 
not  aftbrd  grounds  of  belief  of  a  higher  and  superior 
nature.  The  rule  even  in  a  capital  case  is,  that  should 
the  circumstances  be  sufficient  to  convince  the  mind  and 
remove  every  rational  doubt,  the  jury  is  bound  to  place 
as  much  reliance  on  such  circumstances  as  on  direct  and 
positive  proof. 

Witli  respect  to  the  comparative  weight  due  to  direct 
and  presumptive  evidence,  it  has  been  said  that  circum- 
stances are  in  many  cases  of  greater  force  and  much 
more  to  be  depended  on  than  the  testimony  of  living 
witnesses ;  inasmuch  as  witnesses  may  either  be  mistaken 
themselves,  or  wickedly  intend  to  deceive  others ;  where- 
as circumstances  and  presumptions  naturally  and  neces- 
sarily arising  out  of  a  given  fact  cannot  lie.  But  it  must 
be  observed  that  circumstantial  evidence,  besides  the 
possibility  of  its  l)eiTig  perverted  through  the  means  of 
witnesses  in  like  manner  as  direct  evidence,  is  sul)jected 
to  this  additional  infirmity,  that  it  is  composed  of  infer- 


282  MILITARY   LAT7    AND    COURTS-MARTIAL. 

euces  each  of  wliicli  may  be  fallacious.  As  a  general 
principle  it  is  certainly  true,  that  j^ositive  evidence  of  a 
fact  from  crediVjle  eye-witnesses  is  the  most  satisfactory 
that  can  be  produced,  and  the  universal  feeling  of  man- 
kind leans  to  this  species  of  evidence  in  preference  to 
that  which  is  merely  circumstantial. 

Besides  presumptions  of  fact,  which  suppose  in  each 
case  an  independent  act  of  reasoning,  there  are  certain 
p')'e8um2)tiou8  of  law,  which  will  stand  good  until  the 
contrary  is  proved.  The  law  presumes  a  man  to  be  in- 
nocent, until  the  contrary  is  proved  or  appears  from 
stronger  presumption.  And  it  is  a  rule  that  illegality 
is  never  to  be  presumed,  but  the  presumption  is  that  a 
]3arty  comjjlies  with  the  law. 

There,  is  a  general  presumption  in  criminal  matters, 
that  a  person  intends  whatever  is  the  natural  and  prob- 
able consequence  of  his  own  actions.  And  it  seems  to 
be  clearly  a  presumption  of  law,  that  where  an  act  is 
done  by  one  person  injurious  to  another,  malice — that 
is,  an  attempt  to  injure — -is  prima  facie  to  be  presumed 
in  the  person  doing  the  act.  Thus,  in  every  charge  of 
mui'der,  the  fact  of  killing  being  fii'st  proved,  all  the  cir- 
cumstances of  accident,  necessity,  or  infirmity  are  to  be 
satisfactorily  established  by  the  2:)risoner,  unless  they 
arise  out  of  the  evidence  produced  against  him ;  for  the 
law  presumes  the  fact  to  be  founded  in  malice  unless 
the  contrary  appears. 

In  almost  every  criminal  case,  a  portion  of  the  evi- 
dence laid  before  the  jury  consists  of  the  conduct  of  the 
party  at  the  time  of,  or  after  being  charged  with,  the 
offence.  Great  caution  should  be  exercised  in  weighing 
the  effect  of  such  presumptive  evidence ;  for  an  innocent 


PKESUMPTIVE    EVIDENCE.  283 

man,  finding  himself  in  a  situation  of  difficulty,  and  per- 
haps, from  the  circumstances  of  the  case,  of  danger,  is 
sometimes  induced  to  ado2)t  a  line  of  conduct  which 
bears  with  it  a  presumption  of  guilt.  Flight  may  be 
very  strong  evidence  of  guilt,  or  it  may  weigh  nothing, 
according  to  the  circumstances  under  which  it  takes 
j)hice.  The  legal  presumption  from  flight  is  against  the 
prisoner,  and  it  lies  upon  him  to  rebut  it." 

The  general  rules  which  will  now  be  adverted  to  are : 

First,  That  the   evidence  must  be   confined  to  the 
points  in  issue  ; 

Secondly,  That  the  point  in  issue  must  be  proved  by 
the  party  who  asserts  the  affirmative  ;  and 

TJiirdly,  That  the  substance  only  of  the  issue  need 
be  proved. 

First.— Evidence  confined  to  the  Issue. 

In  criminal  proceedings,  there  is  the  strongest  neces- 
sity for  the  strict  enforcement  of  this  rule ;  for  where  a 
jjrisoner  is  charged  with  an  offence,  it  is  of  the  utmost 
importance  to  him  that  the  facts  laid  before  the  jury 
should  consist  exclusively  of  the  transaction  which 
forms  the  sul)ject  of  the  charge.  This  rule  is  founded 
in  common  justice,  for  no  person  can  be  expected  to 
answer,  unpre23ared  and  at  once,  for  every  action  of  his 
life.  Notwithstanding  the  fact,  that  the  sole  object  of 
receiving  evidence  is  to  establish  the  truth,  yet  there  is 
sometimes  much  difficulty  in  deciding  correctly  what 
particular  testimony  should  be  admitted  or  rejected.  It 
may  be  admissible  in  one  point  of  view,  though  not  in 
another,  and  as  it  is  frequently  difficult  to  ascertain,  a 
priwi,  whether  proof  of  a  particular  fact  offered  in  evi- 

*  1  Phillipps,  598-G13;  Starkie,  514;  Roscoo,  15-20. 


284  MILITARY    LAW    AXD    COUETS-MAETIAL. 

dence  will  or  will  not  become  material,  the  usual  prac- 
tice of  courts  in  such  cases  is,  to  give  credit  to  the  asser- 
tion of  the  party  who  tenders  such  evidence,  that  the 
fact  will  turn  out  to  be  material. 

It  is  hardly  necessary  to  observe,  that  though  a  cir- 
cumstance be  proper  as  tending  to  show  a  particular 
fact,  it  is  hiadmissible  unless  the  fact  itself  be  pertinent 
to  the  question  in  issue. 

It  should  also  be  remembered,  that  under  the  head 
of  relevancy  the  question  is  not  whether  the  evidence 
offered  be  the  most  convincing,  but  whether  it  tends  at 
all  to  illustrate  the  question ;  and  though  an  inquiiy 
may  be  irrelevant  on  the  examination  in  chief,  it  may 
be  afterward  rendered  proper  and  necessary  by'  the 
course  of  a  cross-examination.  An  inquiry  into  other 
facts  besides  those  charged,  may  often  be  totally  irrele- 
vant ;  at  other  times  they  bear  on  the  j^oint  in  issue, 
and  constitute  presumptive  proof  In  support  of  a 
charge  for  malicious  or  disresj)ectful  language  addressed 
to  a  commanding  officer  at  a  stated  time,  or  in  a  particu- 
lar letter ;  after  the  words  charged  have  been  proved, 
the  prosecutor  may  prove  also  that  the  accused  spoke  or 
wrote  other  disrespectful  or  malicious  words  on  the 
same  suhject^  either  before  or  afterward,  or  that  he  2")ub- 
lished  or  disseminated  copies  of  the  letter  set  forth  as 
disrespectful  in  the  charge.  This  evidence  is  admissible, 
not  in  aggravation  of  the  crime  charged,  but  for  the 
purpose  of  proving  deliberate  malice  or  disrespect, 
which  motives  are  imputed  in  the  charge.*  On  a  trial 
for  high  treason,  it  being  proved  that  the  prisoner  had 
enlisted  into  the  enemy's  army,  his  unsuccessful  attempt 

*  Simmons.  405. 


PRESUMPTIVK    EVIDEIS^OE.  285 

to  persuade  aiiotliei'  to  enlist  was  allowed  in  evidence, 
as  showing  tlie  ([uo  aiiimo. 

On  a  court-martial  the  prosecution  is  not  2)erniittcd 
under  any  circumstances  to  examine  as  to  general  habits, 
for  the  purpose  of  showing  that  the  accused  has  a  gen- 
eral disposition  to  commit  the  same  kind  of  offence  as 
that  charged  against  him.  It  is  most  ol)vious  that  char- 
acter not  connected  with  the  charge,  cannot  be  admitted 
to  weigh  in  the  scale  of  evidence  as  to  the  finding  of 
the  court.     - 

cii:iraeter.  Where  intention  is  a  princij)al  ingredient 
in  the  charge,  or  where  circumstantial  proof  only  is  ad- 
duced, evidence  as  to  character  bearing  on  the  charge, 
may  be  highly  important.  An  affectionate  and  warm 
evidence  of  character,  when  collected  together,  should 
make  a  strong  impression  in  favor  of  a  prisoner,  and 
when  those  who  give  such  a  character  in  evidence  are 
entitled  to  credit,  their  testimony  should  have  great 
weight  with  the  court.  On  a  charge  of  murder,  where 
malice  is  essential,  expressions  of  good-will  and  acts  of 
kindness  on  the  part  of  the  prisoner  toward  the  deceas- 
ed, are  always  considered  important  evidence,  as  showing 
what  was  his  general  disposition  toward  the  deceased, 
from  which  it  may  be  concluded  that  his  intention  could 
not  have  been  wh:tt  the  charge  imputes.  On  a  charge 
of  theft,  character  for  honesty  may  be  entitled  to  great 
weight.  So  also  on  a  charge  implicating  the  courage 
of  a  soldier,  character  for  bravery  and  resolution  might 
be  of  vast  importance;  Init  it  would  be  manifestly 
absurd  and  irrelevant,  when  delil)erating  on  a  charge 
of  tlu'ft,  to  allow  character  for  bi'avery  to  weigh  in  the 
scale  of  proof;  or,  when  deciding  on  a  charge  of  cow- 


286  MILITARY    LAW    AND    COURTS-MARTIAL. 

ardice,  to  be  biased  by  a  character  of  honesty.  The 
inquiry  in  such  particular  cases,  ought  manifestly  to 
bear  some  analogy  and  reference  to  the  charge  against 
him. 

General  character  is  the  estimation  in  Avhich  a  person 
is  held  in  the  community  where  he  has  resided.  Public 
opinion  is  the  question  in  common  cases  wdiere  character 
is  in  issue,  character  and  reputation  being  the  same. 
General  character,  unconnected  with  the  charge,  though 
it  must  be  inoperative  with  the  court  except  as  to  deter- 
mining the  nature  of  punishment  in  discretionary  cases, 
may  most  essentially  serve  the  prisoner,  by  influencing 
the  superior  in  whom  the  power  to  mitigate  or  remit 
the  sentence  is  vested.  And  it  has  ever  been  the  prac- 
tice of  courts-martial  to  admit  evidence  as  to  the  pris- 
oner's character,  offered  hy  Itim^  immediately  after  the 
production  of  his  witnesses  to  meet  the  charge,  whatever 
be  its  nature ;  though  questions  by  the  accused  tending 
to  elicit  such,  may  be  frequently  made  in  the  course  of 
the  investigation.  A  j)risoner  is  even  permitted  to  put 
in  proof  particular  instances  wherein  his  conduct  may 
have  been  puljlicly  approved  by  superior  officers.* 
Mere  letters  of  recommendation  Avould  not  be  evidence, 
nor  would  certificates  prepared  for  the  occasion  be; 
instead  of  such  letters,  the  law  requires  testimony  on 
oath,  whether  delivered  orally  in  open  court  or  by 
depositions.  Nor  indeed,  as  to  tliat,  would  ex-parte 
affi(hivits  be  competent.  But  official  letters,  which  ma}' 
have  been  received  at  the  termination  of  a  particulnr 
service  or  tour  of  duty,  are  a  part  of  the  res  gestce,  and 
are  admissible,  subject,  of  course,  to  explanations.f 

*  Simmons,  p.  4U.  f  Attorney-general's  opinions,  January  31st,  1857. 


PRESUMPTIVE    EVIDENCE.  287 

Tlic  good  character  of  tlie  party  accused,  satisfactorily 
estal)lisliecl  by  competent  witnesses,  is  an  ingredient 
which  ought  always  to  be  sul)mitted  to  the  considera- 
tion of  the  court,  together  with  the  other  facts  and  cir- 
cumstances of  the  case.  The  nature  of  the  charge,  and 
the  evidence  by  which  it  is  supported,  will  often  render 
such  ingredient  of  little  or  no  avail ;  but  the  more  cor- 
rect course  seems  to  be  to  leave  the  court-martial  to 
form  their  conclusion  upon  the  whole  of  the  evidence, 
whether  an  individual  whose  character  was  previously 
unblemished,  has  or  has  not  committed  the  particular 
crime  for  which  he  is  called  upon  to  answer.  Still,  in  a 
clear  case,  good  character  will  be  of  no  avail  in  the  find- 
ing. It  is  only  in  cases  of  doubt  that  such  proof  is 
entitled  to  weight. 

Evidence  will  not  he  admitted^  on  the  part  of  the  pros- 
ecution, to  show  the  bad  character  of  the  accused,  unless 
he  has  called  witnesses  in  support  of  his  character ;  and 
even  then  the  2:)rosecutor  cannot  examine  to  particular 
facts. 

Witnesses  as  to  character  may  be  asked  to  state  their 
opportunities,  or  means,  of  forming  an  opinion  as  to  the 
prisoner's  character. 

:nutiny  and  Sortition.  On  a  prosecution  for  a  crime, 
the  proof  of  which  is  sup2:>osed  to  consist  wholly,  or  in 
pai-t,  of  evidence  of  a  conspiracy  entered  into  by  the 
accused,  so  that  the  conspiracy  is  to  be  given  in  evi- 
dence against  him,  general  evidence  of  the  existence  of 
the  conspiracy  charged  must  be  received  in  the  first 
instance,  though  it  cannot  affect  the  accused  unless 
brought  home  to  him  or  t(^  his  agent. 

Upon  the  trial  of  a  charge  of  mutiny,  or  intended 


288  MILITARY    LAW    AND    COURTS-ilARTIAL, 

mutiny,  it  is  important  to  know  liow  far  tlie  acts  or 
declai'ations  of  co-mutineers  in  fuii;herauce  of  a  concert- 
ed plan,  may  be  received  in  evidence  against  a  particular 
individual.  Proof  of  the  plot  or  combination  must  pre- 
cede proof  of  declarations  made  by  either  of  the  alleged 
parties,  tliougli  the  conduct,  acts,  and  declarations  of 
the  separate  parties  in  the  planning  or  execution  of  the 
scheme,  may  ])e  shoAvn  as  evidence  of  the  common  de- 
sign. In  other  words,  general  evidence  may,  in  the  first 
instance,  be  received  as  a  preliminary  step  to  that  more 
particular  evidence,  by  which  it  is  to  be  sllo^vn  that  the 
accused  was  a  guilty  participator  in  the  crime.  It  is 
very  obvious  that  the  rules  of  evidence  on  trials  for 
treason  and  conspiracy  before  courts  of  civil  judicature, 
will  apply  most  aptly  and  closely  to  trials  before  courts- 
martial  for  mutiny  and  sedition. 

The  existence  of  the  conspiracy  may  be  established, 
either  by  evidence  of  the  acts  of  third  persons,  or  by 
evidence  of  the  acts  of  the  prisoner,  and  any  other  ^\dth 
whom  lie  is  attempted  to  be  connected,  concurring  to- 
gether at  the  same  time  and  for  the  same  object.  It  has 
recently  been  held  that  the  prosecutor  may  either  prove 
the  conspiracy  which  renders  the  interests  of  the  con- 
spirators admissible  in  evidence,  or  he  may  prove  the 
acts  of  the  different  j)ersons,  and  thus  prove  the  conspir- 
acy. The  evidence  is  either  direct,  of  a  meeting  and 
consultation  for  the  illegal  purpose  charged,  or  more 
usually  from  the  very  natui'e  of  the  case,  circumstantial ; 
and  the  evidence  is  more  or  less  strong,  according  to  the 
publicity  or  privacy  of  the  object  of  such  concurrence, 
and  the  greater  or  less  degree  of  similarity  in  the  means 
employed  to  effect  it.     The  more  secret  the  one,  and  the 


PRESUMPTIVE    EVIDENCE.  289 

greater  tlie  coincidence  in  the  otlier,  the  stronger  is  the 
evidence  of  conspiracy.* 

In  prosecutions  involving  a  charge  of  conspiracies,  it 
is  an  cstabiiMiied  rule  that  where  several  persons  are 
proved  to  have  combined  together  for  the  same  illegal 
pui'pose,  any  act  done  by  one  of  the  party  in  pursuance 
of  the  original  concerted  plan,  and  mth  reference  to  the 
common  object,  is,  in  the  contemplation  of  the  law,  the 
act  of  the  whole  party ;  it  follows,  therefore,  that  any 
waitings  or  verbal  expressions — being  acts  in  them- 
selves, or  accompanying  and  explaining  other  acts,  and 
so  being  j^art  of  the  res  gestce,  and  which  are  brought 
home  to  one  conspii'ator — are  evidence  against  the  other 
conspirators,  provided  it  sufficiently  appear  that  they 
were  used  in  the  furtherance  of  a  common  design. 

In  like  manner  consultations  in  furtherance  of  a  con- 
spiracy are  receivable  in  evidence,  as  also  letters  or 
drafts  of  answers  to  letters,  and  other  papers  found  in 
the  possession  of  co-conspirators,  and  which  the  jury 
may  not  unreasonably  conclude  were  written  in  prosecu- 
tion of  a  common  purpose,  to  which  the  prisoner  was  a 
party.  For  the  same  reason  declarations  or  wi'itings 
explanatory  of  the  nature  of  a  common  oljject,  in  which 
the  prisoner  is  engaged  together  with  others,  are  re- 
ceivable in  evidence;  provided  they  accompany  acts 
done  in  the  prosecution  of  such  an  object,  arising  natu- 
rally  out  of  these  acts,  and  not  being  in  the  nature  of  a 
subsequent  statement  or  confession  of  them. 

But  where  words  or  ^\Titinf's  are  not  acts  in  them- 

o 

selves,  nor  part  of  the  res  gestw^  but  a  mere  relation  or 
naiTative  of  some  j^art  of  the  transaction,  or  as  to  the 

*  Roscoe,  pp.  415— 417. 

19 


290  MILITARY    LAW    ATsT)    COUETS-MAETIAL. 

share  wliicli  otlier  persons  have  had  in  the  execution  of 
a  common  design,  the  evidence  is  not  within  the  princi- 
ple above  mentioned :  it  altogether  depends  on  the  credit 
of  the  narrator,  who  is  not  before  the  court,  and  there- 
fore it  cannot  be  received. 

It  is  in  consequence  of  the  distinction  between  Avritings 
or  declarations  which  are  a  part  of  the  transaction,  and 
such  as  are  in  the  nature  of  subsequent  statements  but 
not  part  of  the  res  gestae^  that  the  admissibility  of  wi^it- 
ings  often  depends  on  the  time  when  they  are  proved  to 
have  been  in  the  possession  of  co-conspirators,  whether 
it  was  before  or  after  the  time  of  the  prisoner's  appre- 
hension. Thus,  some  papers  containing  a  variety  of  plans 
and  lists  of  names,  which  had  been  found  in  the  house 
of  a  co-conspirator,  and  Avhich  had  a  reference  to  the 
design  of  the  conspii'acy  and  in  furtherance  of  the  alleged 
plot,  were  held  to  be  admissible  evidence  against  the 
prisoner ;  inasmuch  as  there  was  in  the  case  strong  pre- 
sumptive evidence  that  they  were  in  the  house  of  the 
co-conspirator,  hefrre  the  prisoner's  apprehension:  for 
the  room  in  which  the  papers  were  found  had  been 
locked  up  by  one  of  the  conspii'ators.  The  point  in 
this  case  was  distinguished  from  a  point  in  a  previous 
case,  where  the  papers  were  found  after  the  prisoner's 
apprehension,  in  the  possession  of  persons  who,  possibly, 
might  not  have  obtained  the  papers  till  afterward. 

In  a  prosecution  against  several  persons  for  conspiracy 
in  unlawfully  assembling  for  the  purpose  of  exciting 
discontent  and  disaffection,  the  material  points  for  con- 
sideration are,  the  general  character  iind  intention  of 
the  assembly,  and  the  particular  case  of  the  prisoners 
as  connected  with  that  general  character.     With  this 


PEESUMPTIVE   EVIDENCE.  291 

view,  it  would  be  relevant  to  produce  in  evidence  cer- 
tain resolutions  proposed  by  one  of  the  prisoners  at  an 
assembly  recently  lield  at  another  place,  for  the  same 
professed  object  and  purpose  as  were  avowed  by  the 
meeting  in  question,  and  that  the  defendant  acted  in 
both  cases  as  chairman.  In  a  question  of  intention  as 
this  is,  it  would  be  most  clearly  relevant  to  show  against 
that  defendant,  that  at  a  similar  meeting  held  for  an 
ol)ject  professedly  similar,  such  matters  had  passed  un- 
der his  immediate  auspices. 

jMueh  evidence  is  usually  23roduced  upon  such  trials, 
which  does  not  relate  to  the  particular  conduct  of  a  pris- 
oner. Thus  the  acts  and  declarations  of  other  conspir- 
ators in  the  absence  of  the  prisoner  are  admissible  against 
him ;  and  the  prisoner  may  be  aifected  by  ^\Titings  from 
other  persons,  which  came  into  his  custody  before  his 
apprehension.  In  these  cases,  the  evidence  is  of  a  direct 
natm'e,  applying  to  the  acts  in  furtherance  of  a  con- 
spiracy, and  not  circumstantial,  as  proving  only  col- 
lateral circumstances  from  which  these  acts  are  to  be 
inferred. 

As  whatever  the  prisoner  may  have  done  or  said  at 
any  meeting,  alleged  to  have  been  held  in  pursuance  of 
the  conspiracy,  is  admissible  in  evidence  against  him  on 
the  part  of  the  proseciLtion ;  so,  on  the  other  hand, 
any  other  ])art  of  his  conduct  at  the  same  meetings  will 
be  allowed  to  be  proved  in  his  behalf:  for  the  intention 
and  design  of  the  pai-ty  at  a  particular  time,  are  best 
explained  l)y  a  complete  view  of  eveiy  pai-t  of-  his  con- 
duct at  that  time.  Should  other  acts  of  the  prisoner, 
besides  those  charged,  be  proved  against  him  for  the  pur- 
pose of  showing  his  design  in  the  affair  in  question,  it 


292  MILITARY    LAW    AXD    COURTS-MAKTIAL. 

seems  reasonable  tliat  lie  should  be  allowed  to  explain 
those  acts  by  proof  of  other  cotemporaneous  particulars 
of  his  conduct,  which  show  that  he  had  a  different  design 
from  that  imputed  to  hmi.* 

Secondly.— Onus  Probaiidi— Burden  of  Proof. 

It  is  a  general  rule  of  evidence,  established  for  the 
purpose  of  shortening  and  facilitating  investigations, 
that  the  point  in  issue  is  to  be  proved  by  the  party 
who  asserts  the  affirmative,  that  is,  the  affirmative  in 
substance,  not  in  mere  form.  This  rule  arises  also  from 
the  difficulty,  amounting  in  many  cases  to  an  impossi- 
bility, of  proving  a  negative.  Upon  the  party  who  has 
to  give  such  proof,  is  said  to  rest  the  burden  of  proof, 
or,  as  it  is  technically  called,  the  onus  proljctiidi. 

One  of  the  surest  tests  for  ascertaining  upon  which 
side  the  affii'mative  really  lies,  is  to  consider  which  party 
would  be  successful  if  no  e^ddence  at  all  were  given. 
Thus,  where  one  party  charges  another  with  a  cidpable 
omission  or  breach  of  duty,  the  person  who  makes  the 
charge  is  bound  to  prove  it,  though  it  may  involve  a 
negative ;  for  it  is  one  of  the  first  principles  of  justice, 
that  where  a  party  stands  charged  ^\-ith  an  offence,  his 
innocence  is  presumed,  and  the  onus  is  upon  the  prose- 
cutor. 

The  necessity  of  proving  the  negative  must  be  often 
subject  to  the  rule,  that  the  burden  of  proof  lies  on  the 
person  who  has  to  supj)ort  his  case  by  proof  of  a  fact 
which  lies  more  peculiarly  within  his  own  knowledge, 
and  of  which  he  is  supposed  to  be  cognizant.  Thus,  in 
an  action  of  penalties  under  the  game  laws,  though 
the  ])laintiff  must  aver,  in  order  to  bring  the  defendant 

*  ]  riiillipps,  205-209.  and  773-'i7G. 


PRESUMPTIVE    EVIDENCE.  293 

within  the  act,  that  he  was  not  duly  qualified,  yet  it  is 
not  necessary  to  disprove  his  qualification,  but  it  will  be 
for  the  defendant,  if  he  can,  to  prove  himself  qualified. 
If  such  negative  evidence  were  necessary  to  support 
the  information,  it  would  scarcely  be  possible  in  any  case 
to  convict ;  on  the  other  hand,  such  qualification  is  pecu- 
liarly Avithin  the  knowledge  of  the  qualified  person. 

These  rules  were  thus  laid  do^vn  by  Judge  Story:* 
"  If  the  charge  consists  in  a  criminal  neglect  of  duty,  as 
the  law  presumes  the  affirmative,  the  burden  of  proof 
of  the  contrary  is  thrown  on  the  other  side.  But  in 
other  cases,  as  where  the  negative  does  not  admit  of 
direct  proof,  or  the  facts  lie  more  immediately  within 
the  knowledge  of  the  defendant,  he  is  put  to  his  j)roof 
of  the  affirmative." 

Upon  a  question  of  jurisdiction^  where  the  proceed- 
ings of  a  coui-t  of  general  jurisdiction  are  alleged,  the 
law  presumes  jurisdiction,  and  the  onus  of  proving  the 
contrary  lies  with  the  party  who  undertakes  to  question 
it.  But  with  respect  to  courts  of  limited  and  special 
jurisdiction,  it  is  widely  difterent ;  nothing  is  presumed 
in  favor  of  their  jurisdiction,  and  the  party  seeking  to 
derive  advantage  from  their  proceedings  is  bound  to 
show  jurisdiction  affirmatively.f 

Tliirdly.— The  Substance  only  of  the  Issue  need  be 
proved. 

Under  the  present  head  T^^ll  be  considered,  the 
quantity  of  evidence  required  in  support  of  i)articnlar 
averments  in  charges,  and,  consequent  thereui)on,  the 
doctrine  of  variances. 

A  o^eneral  mle,  governing  the  application  of  evidence 

*  United  States  vs.  Ilayward.  2  Gall,  284.  f  ^  PhiHipps,  809-822. 


294  MILITARY    LAW    A1\D    COUKTS-MAKTIAL. 

to  the  points  in  dispute  on  any  issue,  is  that  it  must  be 
sufficient  to  prove  tlie  substance  of  the  issue.  And  the 
greater  number  of  cases  on  this  subject  may  be  classed 
under  the  two  heads  of  divisible  and  descriptive  aver- 
ments. 

Divisible  Averiiicnt§. 

Suflicicitt  to  prove  what  constitutes  an  OfTeuce.  It  is 
a  universal  principle,  which  runs  through  the  whole  of 
the  criminal  law,  that  it  will  be  sufficient  to  prove  so 
much  of  the  indictment  as  charges  the  defendant  with 
a  substantive  crime  therein  specified.  The  offence,  how- 
ever, of  which  he  is  convicted  must  be  of  the  same  class 
with  that  with  which  he  is  charged. 

On  courts-martial,  a  prisoner  charged  with  desertion 
may  be  found  guilty  of  absence  without  leave,  for  ab- 
sence is  the  principal  matter  in  issue,  the  motive  and 
design  being  concomitants. 

On  a  charge  of  oflering  violence  to  a  superior  officer 
in  the  execution  of  his  office,  by  discharging  a  loaded 
musket  at  him,  the  prisoner  may  be  convicted  of  offer- 
ing \dolence,  and  a  proportionate  punishment  may  be 
awarded  for  such  conduct,  although  the  evidence  fail  in 
establishing  that  tlie  rank  or  authority  of  the  superior 
officer  ^^as  known  to  the  offender,  or  although  the  capi- 
tal offence  under  the  ai'ticles  of  war  may  not  have  been 
committed  in  consecpience  of  the  su}>erior  officer  not 
having  been  in  the  execution  of  his  office  at  the  time. 
The  i)rincipal  matter  is  the  offend  violence,  the  rank 
and  office  of  the  person  fired  at  being  circumstances  in 
ao'iri'avation.* 

Where  a  charge   alleges  that  the  accused  did,  and 

*  Simmons,  416. 


PRESUMPTIVE   EVIDENCE.  295 

caused  to  he  done  a  certain  act,  it  is  sufficient  to  prove 
eitlier  one  or  the  otlier. 

Intent.  AVliere  tlie  intent  of  tlie  prisoner  fnrnislies 
one  of  the  ingredients  in  the  oifence,  and  several  intents 
are  laid  in  the  indictment,  eacli  of  which,  together  witlj 
the  act  done,  constitutes  an  offence,  it  is  sufficient  to 
})rove  one  intent  only. 

Descriptive  Averments. 

Where  a  person  or  thing,  necessary  to  be  mentioned 
in  an  indictment,  is  described  -with  circumstances  of 
greater  particularity  than  requisite,  yet  these  circum- 
stances must  be  proved,  otherwise  it  would  not  appear 
that  the  person  or  thing  is  the  same  as  that  described  in 
the  indictment.  Thus,  in  an  indictment  for  coining, 
alleged  possession  of  a  die  made  of  iron  or  steel ;  in  fact, 
it  was  made  of  zinc  and  antimony.  The  variance  was 
held  fatal. 

And  it  has  also  been  held  that  an  allegation  in  an 
indictment,  which  is  not  impertinent  or  foreign  to  the 
cause,  must  be  proved ;  though  a  prosecution  for  the 
oifence  might  be  supported  without  such  allegation. 

^anic  of  Party  Injured.  The  name,  both  Christian 
and  sm-name,  of  the  person  upon  Avhom  the  offence  is 
charged  to  have  been  committed,  is  matter  of  descrip- 
tion and  inust  be  proved  as  laid ;  but  if  the  name  be 
that  1  )y  AN'hich  he  is  usually  called  and  known,  it  is  suffi- 
cient. Where  thei'e  are  a  fatlier  and  a  son  of  the  same 
name,  and  that  name  is  stated  without  any  addition,  it 
shall  be  jjrhna  facie  intended  to  signify  the  father; 
though  it  may  be  pi'oved  that  either  the  father  or  son 
was  the  party  intended. 

It  is  not  necessaiy  that  there  should  be  any  addition 


296  MILITARY    LAW    AND    COUETS-MAETIAL. 

to  the  name.  Where  a  2:)erson  has  a  name  of  dignity, 
he  ought  to  be  described  by  that  name,  and  as  it  forms 
part  of  the  name  itself  and  is  not  an  addition  merely,  it 
must  be  proved  as  laid. 

Where  a  name  which  is  material  to  state,  is  wi'ongly 
spelled,  yet  if  it  be  idem  sonan-s  with  that  proved,  it  is 
sufficient.  Thus,  where  the  name  in  the  indictment  was 
John  WJiyiieard^  and  it  appeared  that  the  real  name 
was  Winya/'d,  but  that  it  was  pronounced  Winnyard^ 
the  variance  was  held  to  be  immatei'ial.  But  McCann 
for  McCarn  is  a  fatal  variance. 

IVaines  of  Third  Persous.  Not  only  must  the  names 
descriptive  of  the  prosecutor  or  party  sustaining  the 
injury  be  strictly  proved,  but  where  the  name  of  a  tliird 
person  is  introduced  into  the  indictment  as  descriptive 
of  some  person  or  thing,  that  name  also  must  be  proved 
as  laid.  When  surnames,  with  a  prefix  to  them,  are 
ordinarily  written  with  an  al^breviation,  the  names  thus 
wiitten  in  an  indictment  are  sufficient.  Where  the 
name  of  a  third  person  is  stated  in  an  averment,  un- 
necessarily introduced,  and  which  may  therefore  be  re- 
jected as  surplusage,  a  variance  ^vill  not  be  material. 

Mode  of  Coiniuittinyr  Oirences.  In  general  the  de- 
scrijitive  averments  of  the  mode  in  which  an  offence  has 
been  committed,  do  not  require  to  be  strictly  proved, 
if,  in  sulistance,  the  evidence  supports  the  allegation. 
Thus,  in  murder,  it  is  always  sufficient,  if  the  mode  of 
death  proved  agree  in  substance  with  that  charged. 
Therefore,  though  where  the  death  is  occasioned  by  a 
particular  weapon,  the  name  and  description  of  the 
weapon  must  be  specified ;  yet,  if  it  appear  that  the 
party  was  killed  l)y  a  different  weapon,  it  maintains  the 


( 


PEESUirPTIVE    EVIDENCE.  297 

indictment;  as  if  a  wound  or  hniise  be  alleged  to  be 
given  ^^ntli  a  sword,  and  it  prove  to  be  with  an  axe  or 
staff,  this  difference  is  immaterial.  And  the  same  if  the 
death  be  laid  to  be  by  one  soii;  of  poisoning,  and  in 
truth  it  be  by  another.  When  the  indictment  was  for 
assaulting  a  person  with  a  certain  offensive  weapon, 
commonly  called  a  tvooden  staffs  and  it  was  proved  to 
have  been  with  a  stone,  it  was  held  well,  for  the  two 
weapons  produce  the  same  sort  of  mischief,  viz.:  by 
blows  and  bruises.  Though  the  weapon  need  not  be 
proved  to  be  the  same,  yet  it  must  appear  that  the 
species  of  killing  was  the  same.  Thus,  if  the  prisoner 
be  indicted  for  poisoning,  it  will  not  be  sufficient  to 
prove  a  death  by  shooting,  starving,  or  strangling. 

Persons  Committing  tlie  Offence.  So  also  mth  regard 
to  the  person  by  whom  the  offence  is  committed,  it  is 
sufficient  to  charge  him  mth  that  which  is  the  legal 
effect  of  the  act  which  he  has  committed.  Therefore, 
where  an  indictment  charges  that  A  gave  the  mortal 
stroke,  and  that  B  and  C  were  present  aiding  and  abet- 
ting, if  it  appeared  in  e^ddence  that  B  was  the  person 
who  gave  the  stroke,  and  that  A  and  C  were  j^resent 
aiding  and  abetting,  they  may  all  be  found  guilty  of 
murder  or  manslaughter,  as  circumstances  may  vary  the 
case.  The  identity  of  the  person  supposed  to  have 
given  the  stroke  is  but  a  circumstance,  and  in  this  case 
a  very  immaterial  one — the  stroke  of  one  being  in  con- 
sideration of  law  the  stroke  of  all.  The  person  giving 
the  stroke  is  no  more  than  the  hand  or  instrument  by 
which  the  others  strike. 

Averments  not  ^Tiateriai.  The  general  rule  with  re- 
gard to  immaterial  averments  has  been  thus  stated :  if 


298  MILITARY    LAW    AIS^D    COURTS-MARTIAL. 

an  avermeut  may  he  entirely  omitted  ^\'it]ioiit  affecting 
tlie  charge  against  the  j^risoner,  and  ^^^thout  detriment 
to  the  indictment,  it  will  be  considered  as  surplusage, 
and  may  be  disregarded  in  evidence ;  as,  where  the 
name  of  a  person  or  place  is  unnecessarily  introduced,  it 
need  not  be  proved. 

Averments  as  to  Time.  It  is  a  rule  that  it  is  not 
necessary  to  prove  the  time  precisely  as  laid,  unless  that 
particular  time  is  material  or  forms  an  ingredient  of  the 
offence  itself.  This  is  the  constant  course  of  proceeding 
in  criminal  prosecutions  from  the  highest  offence  to  the 
lowest ;  although  every  material  fact  must  be  alleged  in 
the  indictment  to  have  occurred  at  a  certain  time. 

Simmons*  cites  the  case  of  a  soldier  who  was  tried  for 
havino;  deserted  on  the  19th  October,  1833,  when  in 
fact  he  had  deserted  on  the  19th  October  of  the  preced- 
ing year,  but  was  still  illegally  absent  on  the  date  men- 
tioned in  the  charge.  The  court  was  recommended  by 
the  then  judge  advocate  general  to  come  to  a  specific 
finding,  stating  the  facts  which  appeared  in  evidence  as 
above  detailed,  and  to  find  the  prisoner  guilty  of  the 
charge,  mth  the  exception  of  so  much  of  it  as  imported 
that  he  deserted  ou  or  about  the  particular  date  men- 
tioned. 

Upon  the  case  of  a  soldier  who  was  proved  to  have 
committed  the  offence  laid  to  his  charge,  but  not  upon 
the  day  specified,  the  judge  advocate  general  remarked 
that  "  it  Avas  perfectly  com23etent  to  the  court  to  find 
the  prisoner  guilty  under  the  charge  so  framed,  altliough 
the  offence  was  proved  to  have  occurred  on  a  different 
day,  but  that  in  such  case  it  was  in  strictness  the  dut}' 

*  rago  423. 


A 


PEESUMPTIVE   EVIDENCE.  299 

of  tlie  court  to  specify  in  tlieir  finding  on  what  clay  tlie 
offence  took  place." 

Avermciit!i  as  to  Place.  On  tlie  trial  of  offences  be- 
fore tlie  ordinary  courts  of  law,  it  is  sufficient  to  prove 
tliat  tlie  offence  was  committed  in  the  county  in  which 
it  is  laid  to  have  been  committed,  and  a  mistake  in  the 
particular  place  in  ^vhicll  an  offence  is  laid  will  not  be 
material.  And  although  the  offence  must  be  proved  to 
have  been  committed  in  the  county  where  the  j)risoiier 
is  tried,  yet  after  such  proof  the  acts  of  the  prisoner  in 
any  other  county,  tending  to  establish  the  charge  against 
him,  ^re  admissible  in  evidence.* 

This  rule  is  fixed  in  this  country  by  the  constitution, 
which  directs  that  in  all  criminal  prosecutions,  the  ac- 
cused shall  enjoy  the  right  to  a  speedy  and  public  trial, 
by  an  impartial  jury  of  the  state  and  district  ^vhere  the 
crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law.f  In  trials  by 
comi;s-martial  no  such  limitation  has  been  fixed,  as  re- 
gai'ds  place,  and  therefore  such  courts  have  a  jurisdiction 
co-extensive  with  the  country ;  and  a  crime  committed 
in  one  geographical  department  may  be  tried  in  any 
other.  Their  jurisdiction,  then,  only  depends  upon  the 
person  offending  and  upon  the  offence  charged. 

It  is  nevertheless  necessary  that  the  place  where  the 
offence  is  supposed  to  have  been  committed  should  be 
laid  with  certainty,  and  this  because  such  allegation 
may,  at  times,  be  essential  to  the  defence  of  the  accused; 
but  a  variance  between  the  proof  of  the  place  where  the 
crime  was  committed  and  the  place  as  laid  in  the  charge, 
should  not  of  necessity  ac(piit  the  prisoner;  it  is  held 

*  Roscoe,  pp.  98-110.  f  Vlth  Amendment. 


300  MILITARY    LAW    AI^D    COUETS-irAETIAL. 

sufficient  to  identify  the  accused  witli  tlie  peipetration 
of  tlie  offence.  A  soldier  accused  of  deserting  the  ser- 
^dce  from  one  place,  on  the  1st  day  of  June,  but  who  on 
trial  was  clearly  shown  to  have  deserted  on  the  specified 
day  from  a  different  place,  would  justly  be  convicted ; 
for  the  essence  of  the  crime  is  made  out,  and  the  place 
whence  he  deserted  makes  no  part  of  the  offence,  but  is 
a  mere  circumstance  of  description.  But  if  the  evidence 
exhil^ited  the  time  and  place  as  so  variant  from  those 
stated  in  the  charge,  that  there  was  a  j^ossibility  of  the 
prisoner  having  repeated  the  offence,  he  would  certainly 
be  acquitted,  because  the  act  charged  and  the  act  j^-oved 
are  distinct  offences.* 

To  lay  the  place  in  a  charge,  enables  the  accused  to 
prove  an  alihi.  When  a  prisoner  is  charged  with  com- 
mitting an  offence,  and  he  can  show  his  absence  from  the 
particular  place  at  the  time,  he  is  said  to  prove  an  alibi. 
Before  coui'ts-martial  such  a  defence  does  not  avail, 
where  the  crime  is  clearly  made  out  to  have  been  com- 
mitted by  him  at  the  time  stated,  although  at  a  different 
place,  for  the  place  has  been  wi'ongfully  stated — the 
crime  and  criminal  clearly  proved.  But  where  the 
crime  and  2:)lace,  and  not  the  criminal,  have  l^een  put  in 
proof,  the  prisoner  may  prove  an  alihi  by  showing  that 
at  the  time  of  the  commission  of  the  offence  at  that 
place  he  was  at  another  place.     This  wuuld  acquit  him. 

EXAMINATION  OF  WITNESSES. 

Witnesses  at  courts-martial  are  invariably  examined 
in  open  court  in  the  presence  of  each  member,  and  of 
the  parties  to  the  trial.     The  court  is  thereby  enabled 

*  De  Hart,  pp.  367,  368. 


EXAMINATION    OF    WITNESSES.  301 

to  observe  tlieii'  demeanor,  inclination,  and  understand- 
ing ;  points  essential  to  tlie  formation  of  a  correct  judg- 
ment as  to  tlie  value  of  their  testimony.  The  adverse 
party  is  also  afforded  an  opportunity  of  ol^jecting  to 
their  competency,  or  of  trying  their  credibility  by  cross- 
examination. 

On  courts-martial  no  witness  \s>  ijermitted  to  oe  present 
during  the  examination  of  another,  to  j^revent  the  influ- 
ence which  the  testimony  given  by  one  may  tend  to  pro- 
duce in  another,  and  also  to  render  collusion  difficult 
between  them.  In  general,  the  court  will,  on  the  appli- 
cation of  either  of  the  parties,  direct  that  all  the  wit- 
nesses but  the  one  under  examination  shall  leave  the 
coui*t,  and  this  right  may  be  exercised  at  any  period  of 
the  trial.  This  rule  does  not  extend  to  the  counsel,  who, 
upon  the  request  of  the  prisoner,  may  remain  and  still 
be  examined  as  a  Avitness,  his  assistance  being  necessary 
to  the  proper  conduct  of  the  defence.  A  surgeon — or 
other  professional  person — who  is  called  to  give  an  opin- 
ion as  a  matter  of  skill,  upon  the  circumstances  of  the 
case,  may  be  allowed  to  remain  in  court  during  the  trial 
till  the  medical  opinion  of  other  witnesses  begins.  If  a 
witness  should  remain  in  court  or  return  to  it  after  being 
directed  to  withdraw,  it  is  for  the  court  to  decide  as  to 
the  admission  or  rejection  of  his  testimony.  K  admit- 
ted, the  cii'cumstance  may  aifect  his  credibility. 

It  is  almost  a  matter  of  right  for  the  opposite  party 
to  have  a  witness  out  of  court,  while  a  discussion — 
legal  argument — is  going  on  as  to  his  evidence. 

It  is  competent  to  a  court-martial  to  confront  any  two 
or  more  adverse  witnesses,  that  is,  to  call  into  court  at 
the  same  time,  any  two  or  more  contradictory  witnesses, 


302  ^MILITARY    LAW    AXD    COURTS-MARTIAL. 

and  to  endeavor  to  reconcile  tlieir  testimon}^  hy  reading 
over  to  eacli  the  evidence  of  the  other,  and  by  requiring 
an  explanation  of  such  parts  as  are  inconsistent  or 
contradictory,  in  order  to  ascertain  as  far  as  possible  the 
real  truth  of  the  case ;  but  this  proceeding  would  not 
be  advisable,  till  the  close  of  the  cross-examination.* 

A  memher  of  a  court-martial,  as  a  judge  or  juror,  is  a 
competent  witness,  and  may  be  sworn  to  give  evidence 
in  favor  or  against  a  prisoner,  at  any  stage  of  the  pro- 
ceedings ;  it  is,  however,  to  be  avoided,  if  foreseen.  It 
need  scarcely  be  observed,  that  no  communication  by  a 
member  in  closed  court,  can  be  received ;  he  must  be 
sworn  as  other  witnesses,  in  o^Qn  court,  and  be  subject 
to  cross-examination ;  neither  ought  the  private  knowl- 
edge of  any  fact  to  influence  the  particular  verdict  of  a 
member,  for  he  is  sworn  to  well  and  truly  try  and  de- 
termine, strictly  according  to  the  e^-idence  before  the 
coui't,  and  not  according  to  the  evidence  concluded  in 
his  OTVTi  breast. 

It  is  a  question  frequently  agitated,  whether  or  not 
courts-martial  are  competent  to  originate  evidence  /  that 
is,  to  call  into  court  a  witness  not  produced  by  the  par- 
ties before  the  court.  There  is  no  doubt  but  that  the 
court  may,  at  any  period  of  the  trial,  recall  any  -witness 
for  further  examination,  if  any  question  occur  to  the 
court  or  is  suggested  by  either  of  the  parties ;  and  it 
would  also  seem  that  the  custom  of  the  service  would 
justify  the  calling,  as  a  ^vitness,  any  indi\ddual  alluded 
to  in  the  evidence  before  the  court,  who  may  be  at  hand, 
and  whose  examination  might  afford  a  probability  of 
elucidating  a  special  point  which  may  be  dubious ;  but 

*  Adye.  101. 


J 


EXAMINATIOlSr    OF    WITNESSES.  303 

it  is  apprehended  that  this  is  the  utmost  extent  to  which 
a  court  would  be  authorized  to  o-o.* 

o 

The  2)rope)'  time  to  object  to  the  conq^etency  of  a  wit- 
ness, is  when  he  is  called,  and  before  being  sworn,  l)ut 
objections  to  his  competency  never  come  too  late,  but 
may  be  made  in  any  stage  of  the  case.  Still,  a  party 
who  is  cognizant  of  the  interest  of  a  witness;  at  the  time 
he  is  called,  is  bound  to  make  his  objection  in  the  first 
instance ;  he  must  make  it  as  soon  as  the  interest  is  dis- 
covered and  he  lias  an  opportunity  of  doing  it ;  other- 
wise he  will  be  considered  as  having  waived  the  objec- 
tion. 

The  strict  and  regular  method  of  raising  an  objection 
to  the  competency  of  a  witness,  is  by  examining  him  on 
the  voir  dire  ^  that  is,  he  should  be  sworn  t  -  ansAver  all 
such  questions  as  the  court  shall  demand  of  him — -his 
statement  on  such  examination  not  being  evidence  in  the 
case  pending.  The  examination  of  the  mtness  in  the 
cause  may  be  stoj)ped  at  any  time,  in  order  that  he  may 
be  sworn  upon  the  voir  dire  and  examined  as  to  his 
competency ;  yet  this  formal  proceeding  is  not  necessary, 
and  if  it  should  appear,  wliile  the  witness  is  still  under 
examination,  that  he  is  incompetent,  the  objection  may 
be  taken,  and  his  testimony  excluded  or  stricken  from 
the  case. 

Where  the  supposed  incompetency  arises  from  defect 
of  understanding,  as  in  the  instance  of  lunatics,  idiots, 
<fec.,  or  from  defect  of  religious  principle,  as 'in  the  case 
of  atheists,  young  children,  <fec.,  inasmuch  as  the  very 
ground  of  incompetency  assumes  that  the  proposed  vni- 
ness  has  no  perception  of  the  obligation  of  an  oath,  it 

*  Simmons,  464. 


304  MILITAKY   LAW   AND    COURTS-MAETIAL. 

follows  that  tlie  preliminary  in(]^uiry  ujdou  tlie  voir  dire 
cannot  be  upon  oath. 

The  objection  to  a  witness's  competency  may  he  sup- 
ported^ either  by  the  examination  of  the  witness  or  by 
independent  evidence,  and  it  rests  upon  the  party  object- 
ing, to  prove  the  incompetency  of  the  witness.  A\Tiere 
you  resort  to  the  voir  dire  you  are  concluded ;  and  if 
you  fail  to  show  incompetency  in  this  mode  you  cannot 
do  it  by  other  evidence  of  any  kiud,  in  the  course  of  the 
same  trial.  So  if  you  inquire  of  the  witness  as  to  his 
interest,  on  his  general  oath,  this  is  equivalent  to  an  in- 
quiry upon  the  voir  dire,  and  equally  prevents  a  resort 
to  any  other  mode.  If  you  have  attempted  to  show  in- 
competency by  evidence  derived  fi-om  any  other  source 
than  the  \vitness,  you  shall  not  afterward  put  him  on  his 
voir  dire.  But  where  you  have  failed  in  youi*  attempt 
by  other  testimony  to  show  one  set  of  facts  upon  which 
you  rely  for  incompetency,  you  may  still  show  his  in- 
terest on  another  set  of  facts,  even  on  his  voir  dire. 

When  the  objection  arises  from  a  ^vitness's  examina- 
tion on  the  voir  dire,  the  objection  may  be  removed  by 
the  statement  of  the  party  himself  on  fui'ther  examina- 
tion. But  where  the  party  calling  a  witness  attempts 
to  remove  the  objection,  not  by  a  further  examination 
of  the  witness,  but  by  other  independent  proof,  he  will 
be  subject  to  all  the  ordinary  rules  of  evidence.^ 

Order  of  Examination.  When  a  witness  has  been 
regidarly  sworn,  he  is  first  examined  by  the  party  who 
produces  him ;  after  which  the  other  party  is  at  liberty 
to  cross-examine ;  and  then  the  party  who  first  called 
him  may  re-examine.     This  closes  the  examination  of 

*  Phillipps,  104. 


EXAMINATION    OF    WITNESSES.  305 

tlie  Witness.  The  office  of  tlie  examination  in  cliief  is, 
to  lay  before  the  court  the  whole  of  the  information  of 
the  witness  that  is  relevant  and  material ;  the  office  of 
cross-examination  is,  to  search  and  sift,  to  correct,  and 
supply  omissions ;  the  office  of  re-examination,  to  ex- 
plain, to  rectify,  and  put  in  order 

Exaiuiuation  iii  Chief.  On  the  examination  in  chief 
of  the  witness,  you  are  bound  at  your  peril  to  ask  all 
material  questions  in  the  first  instance ;  and  if  you  omit 
this,  it  cannot  be  done  in  reply.  No  new  question  can 
be  put  in  reply  unconnected  with  the  subject  of  the 
cross-examination,  and  which  does  not  tend  to  explain 
it.  If  a  question  as  to  any  material  fact  has  Tjeen  omit- 
ted upon  the  examination  in  chief,  the  usual  course  is 
to  suggest  the  question  to  the  court,  which  will  exercise 
its  discretion  in  putting  it  to  the  witness.* 

Leading  questions^  that  is,  such  as  instruct  a  witness 
how  to  answer  on  material  points,  are  not  allowed  on 
the  examination  in  chief,  as  the  witness  is  supposed  to 
be  in  the  interest  of  that  party.  A  question  to  a  wit- 
ness is  leading,  which  puts  into  his  mouth  the  words  to 
be  echoed  back,  or  plainly  suggests  the  answer  which 
the  party  wishes  to  get  from  him.  Putting  it  in  the 
alternative  form,  as  whether  or  not  a  party  did  a  certain 
act,  specifying  it,  does  not  remove  the  ol)jection  to  a 
question  being  leading,  and  it  is  a  mistake  to  suppose 
such  only  is  a  leading  question,  to  which  yes  or  no  would 
be  a  conclusive  answer.  The  pei-nicious  influence  of 
leading  questions  is  most  felt,  and  most  to  be  feared, 
when  the  oljjeet  of  an  inquiry  is  to  ascertain  the  details 
of  a  conversation,  admission,  or  agreement ;  and  more 

*  Starkie,  150. 
20 


306  MILITAllY    LAW    AND    COURTS-MAETIAL. 

rigor  is,  in  such  cases,  justified  in  confining  tlie  direct 
examination  to  its  appropriate  rules. 

Questions  which  are  merely  introductory,  and  which, 
whether  answered  in  the  afiii-mative  or  negative,  would 
not  be  conclusive  on  any  of  the  points  in  the  case,  are 
not  liable  to  the  ol^jection  of  leading.  A\Tiere  an  omis- 
sion is  caused  by  want  of  memory,  a  suggestion  may  be 
permitted  to  assist  it. 

The  general  rule  is  relaxed^  wherever  it  clearly  ap- 
pears that  the  witness  is  hostile,  or  that  a  more  search- 
ing mode  of  examining  him  is  necessary  to  elicit  the 
truth.  In  such  cases,  the  com-t  may  deem  it  right  to 
allow  the  examination  in  chief  to  assume  something  of 
the  form  of  cross-examination — and  how  far  this  may  be 
by  leading  questions  rests  entirely  in  the  discretion  of 
the  court. 

It  seems  doubtful  to  ivhat  extent  leading  questions 
may  be  put  in  an  examination  in  chief,  when  the  object 
is  to  prove  that,  another  witness,  examined  on  the  op- 
posite side,  has  on  some  former  occasion  made  a  different 
and  contradictory  statement.  The  most  unexceptiona- 
ble and  proj^er  course  appears  to  be,  to  ask  the  witness 
who  is  called  to  j^rove  a  contradictory  statement  made 
by  another  witness,  what  that  otlier  witness  said  relative 
to  the  transaction  in  question,  or  what  account  he  gave, 
and  not  in  the  first  instance  to  ask  in  the  leading  form, 
whether  he  said  so  and  so,  and  used  such  and  such  ex- 
pressions.* 

Cross-exaiiiiiiatioii.  The  power  of  cross-examination 
is  generally  allo\ved  to  afford  one  of  the  best  securities 
against  incomplete,  garl)led,  or  false  evidence ;  great  lati- 

*  2  PhiUipps,  888-895. 


EXAMIiSTATION    OF    WITNESSES.  30? 

tilde,  therefore,  is  allowed  iu  tlie  mode  of  j)ntting  (jiies- 
tious.  Leading  questions  are  admitted,  in  wliicli  larger 
powers  are  given  to  the  examining  party  than  in  the 
original  examination.  The  form  of  a  cross-examination, 
however,  dejoends  in  some  degree,  like  that  of  an  exam- 
ination in  chief,  upon  the  bias  and  disposition  evinced 
by  the  witness  under  interrogation.  If  he  should  dis- 
play a  zeal  against  the  party  cross-examining  him,  great 
latitude  with  regard  to  leading  questions  may  with  pro- 
priety be  admitted.  It  has  been  held  that  you  may 
put  a  leading  question  to  an  unwilling  witness  on  the 
examination  in  chief,  at  the  discretion  of  the  court,  but 
you  may  always  put  a  leading  question  in  cross-exam- 
ination, whether  a  witness  be  unwilling  or  not.  But  iu 
this  latter  case,  the  witness  cannot  Ije  asked  a  leading 
question  in  respect  to  new  matter,  the  same  rules  hold- 
ing as  on  the  examination  in  chief. 

Irrelevant  questions  will  not  be  allowed  to  l:)e  put  to 
a  witness  on  cross-examination,  although  they  relate  to 
facts  opened  by  the  other  party  but  not  proved  in  evi- 
dence. Nor  can  a  witness  be  cross-examined  as  to  any 
facts  which,  if  admitted,  would  be  collateral  and  wholly 
irrelevant  to  the  matters  in  issue,  for  the  purpose  of 
contradicting  him  1)y  other  evidence,  and  in  this  manner 
to  discredit  his  testimony.  And  if  the  witness  answers 
such  an  irrelevant  question  before  it  is  disallow^ed  or 
^vithdrawn,  evidence  cannot  afterward  be  admitted  to 
contradict  his  testimony  on  the  collateral  matter. 

Counsel  cannot  assume  that  a  witness  has  made  a 
statement  on  his  examination  in  chief,  which  he  has 
not  made ;  or  \)\\i  a  question  which  assumes  a  fact  not 
in  proof 


308  inLITARY    LAW    AXD    COUETS-MAETIAL. 

Where  a  witness  is  called  merely  to  jDioduce  a  docu- 
ment, wliich  can  be  proved  Ly  another,  lie  is  not  subject 
to  cross-examination.  But  wliere  the  party  j^roducing 
the  document  is  sworn,  the  other  side  is  entitled  to 
cross-examine  him,  although  he  is  not  examined  in  chief. 
So  where  a  witness  has  been  asked  only  one  immaterial 
question,  and  his  evidence  is  stopped,  the  other  party 
has  no  right  to  cross-examine  him.  Where  a  witness  is 
sworn  and  gives  some  evidence,  if  it  be  merely  to  prove 
an  instrument,  he  is  to  be  considered  a  witness  for  all 
purposes. 

It  is  not  admissible  in  cross-examination  to  represent 
the  contents  of  a  letter^  and  to  ask  a  witness  whether  he 
wrote  such  a  letter  to  any  person  with  such  contents,  or 
contents  to  the  like  effect,  without  having  first  shown 
the  witness  the  letter,  and  his  admitting  that  he  wrote 
such  a  letter ;  a  witness  may,  however,  be  asked  what  a 
party  to  the  trial  has  said  as  to  the  contents  of  a  paper, 
without  producing  it.  One  or  more  lines  of  a  letter 
may  be  shown  to  a  witness,  and  he  may  be  asked 
whether  he  wrote  such  part  of  a  letter ;  but  if  the  wit- 
ness deny  that  he  wrote  such  part  exhibited,  he  cannot 
be  examined  as  to  the  contents  of  the  letter.  If  a  wit- 
ness admits  a  letter  to  be  of  his  handwriting,  he  cannot 
be  questioned  whether  statements,  such  as  may  be  sug- 
gested, are  contained  in  it ;  the  whole  letter  must  be 
read  in  evidence.* 

Rc-oxainiiiatioii.  A  re-examination,  which  is  allowed 
only  for  the  purpose  of  explaining  any  focts  Avhieh  may 
come  out  in  cross-examination,  must  of  course  be  con- 
fined to  the  subject  matter  of  the  cross-examination.     It 

*  Simmons,  p.  478. 


EXA^HNATlO^f    OF    WITNESSES.  309 

is  not  to  extend  to  any  new  matter,  unconnected  ^vith 
the  cross-examination,  and  wHcli  mi2:lit  liave  been  in- 
quired  into  on  the  examination  in  chief,  but  must  be 
confined  to  questions  which  may  be  proper  to  draw  out 
an  explanation  of  the  sense  and  meaning  of  the  ex2:)res- 
sions  used  by  the  i^dtness  on  cross-examination,  if  they 
be  in  themselves  doubtful ;  and  also  of  the  motive  by 
which  the  witness  was  induced  to  use  those  expressions. 
IVIcnioraiicluni  to  Rcfrc§Ii  Witness's  IWemory.  A  "wit- 
ness may  refer  to  an  informal  memorandum  taken  down 
by  himself,  in  order  to  refresh  his  memory.  So  he  may 
refer  to  any  entry  or  memorandum  he  has  made  shortly 
after  the  occurrence  of  the  fact  to  which  it  relates,  al- 
though the  entry  or  memorandum  would  not  of  itself  be 
e\'idence.  At  present,  however,  the  case  would  seem  to 
warrant  the  statement,  that,  generally,  an  original  mem- 
orandum made  by  the  witness  presently  after  the  facts 
noted  in  it  transpired,  and  proved  by  the  same  witness 
at  the  trial,  may  be  read  by  him,  and  is  evidence  to  the 
court  of  the  facts  contained  in  the  memorandum,  al- 
though the  witness  may  have  totally  forgotten  such 
facts  at  the  time  of  the  trial,*  So  Avhere  a  witness  tes- 
tifies that  he  was  present  at  a  conversation  and  made  a 
memorandum  of  it  immediately  after  it  took  place ;  that , 
he  had  now  no  recollection  of  all  the  particulars,  but 
that  he  had  no  douT)t  that  the  facts  stated  in  the  memo- 
randum were  true ;  and  that  he  sliould  have  sworn  to 
them  fi-om  recollection  within  a  short  time  afterward — 
the  memorandum  was  admitted  in  evidence,  in  connec- 
tion ^A'ith  his  testimon}',  to  show  the  particulars  of  the 
conversation. 

*  2  Phillpps,  p.  918. 


310  .^IILITARY    LAW    AND    COUKTS-MARTIAL. 

But  a  witness  cannot  refresli  his  memory  by  extracts 
from  a  book,  though  made  by  himself;  or  from  a  copy 
of  a  book;  for  the  rule  requiring  the  best  evidence 
makes  it  necessary  to  produce  the  original,  though  used 
only  to  refresh  the  memory.  Where  a  witness  on  look- 
ing at  a  wiitten  paper  has  his  memory  so  refreshed  that 
he  can  speak  to  the  facts  from  a  recollection  of  them, 
his  testimony  is  clearly  admissible,  although  the  paper 
may  not  have  been  written  by  him.  Where  the  wdtness 
cannot  speak  without  referring  to  a  book,  the  book  must 
be  produced  in  coiu't.  If  produced  the  other  party  has 
a  right  to  see  it,  and  cross-examine  from  it.  If  he  cross- 
examines  to  other  entries  than  those  referred  to  by  the 
witness,  he  makes  them  part  of  his  own  evidence.* 

PKIVILEGE  OF  WITNESS  IN  REFUSING  TO 
ANSWER. 

1.  Where  flie  Answering  might  subject  him  to  a  Crim- 
inal ciiarge,  &c.  A  witness  cannot  be  compelled  to 
answer  any  question  which  has  a  tendency  to  expose 
him  to  a  penalty,  or  to  any  kind  of  punishment,  or  to  a 
criminal  charge.  He  is  exempted  by  his  privilege  from 
answering  not  only  what  will  criminate  him  directly, 
but  also  w^hat  has  any  tendency  to  criminate  him ;  and 
the  reason  is,  because  otherwise  question  might  be  put 
after  question,  and  though  no  single  question  may  be 
asked  which  dii'ectly  criminates,  yet  enough  might  be 
got  from  him  by  successive  questions  whereon  to  found 
against  him  a  criminal  charge.  In  Burr's  trial  the  rule 
was  finally  thus  stated  1  )y  Chief-Justice  Marshall :  "  It 
is  the  province  of  the  court  to  judge  whether  any  direct 

*  Roscoe,  p.  170. 


PErV'ILEGE    OF   REFUSmG    TO    ANS^^TSK.  oil 

answer  to  tlie  question  wliicli  may  he  proposed,  will 
furuisli  evidence  ao-ainst  tlie  witness.  If  such  answer 
may  disclose  a  fact,  whicli  forms  a  necessary  and  essen- 
tial link  in  tlie  cliain  of  testimony,  Avliicli  would  be  suf 
ficient  to  convict  him  of  any  crime,  lie  is  not  bound  to 
answer  it  so  as  to  furnisli  matter  for  tliat  conviction. 
In  sucli  case,  tlie  witness  must  himself  judge  what  his 
answer  will  be ;  and  if  he  say  on  oath  that  he  cannot 
answer,  he  cannot  be  compelled  to  answer."  The  privi- 
lege of  refusing  to  answer  is  the  privilege  of  the  witness, 
not  of  the  party.  It  belongs  to  the  witness  on  a  princi- 
ple of  natural  justice.  The  right  to  refuse  to  answer  in 
such  cases  is  a  right  of  self-defence  ;  if  he  has  a  right  to 
defend  himself  against  a  criminal  charge,  he  must  have 
a  full  right  not  to  expose  himself  to  such  a  charge  by 
giving  evidence,  and  not  to  be  accessory  to  his  own 
ruin.  The  court,  therefore,  always  feels  it  to  be  its 
duty  to  qjDprise  a  witness  of  his  privilege, -as  soon  as  a 
question  is  asked  which  may  place  him  in  danger. 

Whether  questions,  the  answers  to  which  would  ex- 
pose the  witness  to  punishment,  ought  not  to  be  allowed 
to  he  put^  or  whether  the  witness  ought  merely  to  be 
protected  fi'ora  ansioering  such  questions,  does  not  ap- 
pear to  be  settled.  Upon  principle  it  would  seem  that 
questions  tending  to  expose  the  witness  to  punishment^ 
may  he  put,  as  Avell  as  questions  tending  to  degrade  his 
character.  The  ground  of  objection  in  the  first  case  is, 
not  that  the  question  has  a  tendency  to  degrade  him, 
but  that  advantage  may  be  taken  of  his  answer  in  some 
future  proceeding  against  him,  and  the  rule  that  no 
person  is  bound  to  accuse  himself  is  urged.  This  objec- 
tion is  however  completely  removed  by  permitting  the 


312  MILITARY    LAAV    AIS^D    COUETS-MAETIAL. 

witness  not  to  answer  tlie  question,  for  liis  silence  would 
not  in  any  future  proceeding  be  any  admission  of  guilt. 
The  question  may  then  be  regarded  as  one  simj^ly  tend- 
ing to  degrade  the  witness,  and  would  come  within  the 
rule  which  appears  to  be  now  well  established,  that  it 
may  be  iJiit^  though  the  witness  is  not  comj^ellaljle  to 
give  an  answer,  or  that  if  he  does  give  an  answer,  the 
party  examining  him  must  l)e  satisfied  with  it.^^ 

A  witness  may  xoavve  his  privilege^  and  answer  at  his 
peril.  If  the  witness  answers  questions  on  the  exami- 
nation in  chief,  tending  to  criminate  himself,  he  is  bound 
to  answer  on  the  cross-examination,  though  the  answer 
may  implicate  him  in  a  transaction  affecting  his  life. 
So,  if  the  witness  begins  to  answer  he  must  proceed, 
and  if  he  be  cautioned  that  he  is  not  compellable  to 
answer  a  question  which  may  tend  to  criminate  him, 
and  chooses  to  answer  it,  he  is  l)ound  to  answer  all 
questions  relative  to  that  transaction.  But  Phillippsf 
quotes  a  case  in  which  the  majority  of  the  judges  thought 
that  it  made  no  difference  to  the  rio-ht  of  the  witness  to 

o 

protection,  that  he  had  chosen  to  answer  in  part ;  being 
of  opinion  that  he  was  entitled  to  it  at  whatever  stage 
of  the  inquiry  he  chose  to  claim  it. 

From  the  nature  of  the  right  it  may  be  inferred,  that 
he  will  Ije  at  lil)ert3^  to  answer,  or  refuse  to  answer,  any 
questions  at  his  discretion ;  and  that  his  consenting  to 
answer  some  questions  ought  not  to  bar  his  right  to  de- 
mur to  others.  On  the  other  hand,  it  is  only  reasona- 
ble that  he  should  not  be  allowed,  by  any  arbitrary  use 
of  his  privilege,  to  make  a  partial  statement  of  facts  to 
the  prejudice  of  either  party. 

*  Roscoc,  173.  t  2,  936. 


I 


i 


PErVTLEGE    OF    REFUSING    TO    ANSWER.  fJlo 

An  accomplice^  admitted  to  give  evidence  against  liis 
associate  in  guilt,  is  iDound  to  make  a  full  and  fixir  con- 
fession of  the  whole  truth  as  to  the  offence  which  is  the 
subject  matter  of  the  prosecution.  If  he  waives  the 
privilege,  he  does  so  fully  in  relation  to  that  act ;  but  he 
does  not  thereby  waive  his  privilege  of  refusing  to  re- 
veal other  unla\^^ul  acts,  wholly  unconnected  with  the 
act  of  which  he  has  spoken,  even  though  they  may  be 
material  to  the  issue. 

Where  a  witness  is  entitled  to  decline  an-sioering  a 
question,  and  does  decline,  the  rule  is  said  to  be,  that 
this  not  answering  can  have  no  effect  with  the  jury.  So 
where  a  witness  demurred  to  answer  a  question,  on  the 
ground  that  he  had  been  threatened  with  a  prosecution 
respecting  the  matter,  and  the  counsel  in  his  address  re- 
marked upon  the  refusal,  the  judge  interposed  and  said, 
that  no  inference  was  to  be  drawn  from  such  a  refusal. 

2.  ^Vhere  Aiis^wcriiig  may  Decade  Witiic§s's  Cliaracter. 
The  point  has  frequently  been  raised  and  argued,  whether 
a  witness  on  cross-examination,  is  bound  to  give  an  an- 
swer to  questions  put  that  are  not  relevant  to  the  mat- 
ters in  issue,  but  the  answering  of  which  will  have  a 
direct  tendency  to  degrade  the  witness's  character, 
though  it  may  not  subject  him  to  a  criminal  prosecu- 
tion. If  a  "^^dtness,  for  instance,  were  asked  whether  he 
had  not  suffered  some  infamous  punishment,  or  if  any 
other  question  of  the  same  kind  were  asked,  imputing 
criminality  to  the  witness  in  some  past  transaction  and 
not  relevant  to  the  matters  in  issue,  would  he  be  com- 
pellable to  answer  ?  The  doubt  only  exists  where  the 
questions  put  are  not  relevant  to  the  matter  in  issue, 
but  are  merely  propounded  for  the  pm-jDose  of  throwing 


314  MILITAEY    LAW    AND    COUETS-MAETIAL. 

light  on  tlie  witness's  character;  for  if  the  transaction- 
to  which  the  witness  is  interi'ogated  form  any  part  of 
the  issue,  he  will  be  obliged  to  give  evidence,  however 
strongly  it  may  reflect  upon  his  character.  There  is  no 
fixed  rule  on  this  point,  but  the  weight  of  authority 
seems  to  be,  that  questions  tending  to  degrade  the  char- 
acter of  the  witness  and  not  relevant  to  the  matter  in 
issue,  may  be  put,  but  that  the  witness  is  not  l;)ound  to 
answer.  If,  however,  the  \^'itness  chooses  to  answer  such 
questions,  the  party  who  asks  them  must  be  bound  by 
his  answers,  and  cannot  be  allowed  to  falsify"  them  by 
evidence. 


MODES   OF  IMPEACHmG  THE  CKEDIT  OF 

WITNESSES. 

The  credit  of  a  witness  may  be  impeached,  either 
simply  by  questions  put  to  him  on  a  cross-examination, 
or  by  calling  other  witnesses  to  impeach  his  credit.  No 
witness's  character  for  veracity  can  be  impeached  except 
by  contradictory  proof  ^  or  by  proof  affecting  his  cliarac- 
ter  fcrr  veracity. 

1.  Proof  of  Oencral  Character  for  Veracity.  The 
party  against  whom  a  witness  is  called,  may  examine 
other  witnesses  as  to  his  general  character.  To  impeach 
the  credit  of  a  mtness  you  can  only  examine  to  his 
general  character,  and  not  to  j)articular  facts — that  is, 
not  to  particular  tacts  which,  if  true,  would  impeach  his 
character  for  veracity;  and  the  reason  given  is,  that 
every  man  may  be  supposed  capable  of  supporting  his 
general  character,  but  it  is  not  likely  he  should  be  pre- 
pared to  answer  to  particular  facts,  without  notice ;  and 


lilPEACniNG    CREDIT    OF   WITISTESSES.  315 

unless  his  general  character  and  behavior  are  in  issue,  lie 
has  not  notice. 

In  impeaching  the  credit  of  a  witness,  the  interroga- 
tions cannot  embrace  both  his  moral  and  military  char- 
acter and  standing,  as,  for  instance,  "  Does  the  accused 
belong  to  witness's  company,  and  if  so,  what  character 
does  he  bear  in  the  company  V  The  regular  mode  of 
examining  into  the  general  character  of  a  witness  is,  by 
inquiring  of  the  Avitnesses  who  are  called  to  impeach  it, 
whether  they  have  the  means  of  knowing  his  general 
character  for  veracity,  and  whether,  with  such  knowl- 
edge, they  would  believe  him  on  his  oath.  In  reply, 
the  other  party  may  cross-examine  the  mtnesses  who 
have  given  evidence  against  the  general  character  of  his 
witness,  as  to  their  means  of  knowledge  and  the  grounds 
of  their  opinion ;  or  may  by  fresh  eA^dence  support  his 
own  witness's  general  character  for  veracity,  or  may 
attack  the  character  of  the  impeaching  witness. 

2.  Proof  of  Contradictory  Statemcuts.  The  credit 
of  a  witness  may  be  impeached  by  proof  that  he  has 
made  statements  out  of  court  on  the  same  subject,  con- 
trary to  what  he  swears  at  the  trial,  provided  he  has 
been  previously  cross-examined  as  to  such  alleged  state- 
ments ;  and  provided  also,  that  such  statements  are  ma- 
terial to  the  question  in  issue.  This  evidence  of  contra- 
dictory statements  is  produced  for  the  purpose  of  ex- 
citing doubt  and  distrust  against  his  testimony  as  to  the 
particular  transaction  on  which  the  discrepancy  arises, 
and  in  some  cases,  to  raise  suspicion  as  to  the  truth  of 
his  testimony  in  general.  These  contradictoiy  state- 
ments may  be  either  verbal  or  in  writing." 

*  2  Phillipps'  Ev.,  955-959. 


316  IvnLITARY    LAW    AND    COUETS-MARTIAL. 

Coiitraciictingr  his  ovt'ii  ivitiicss.  It  is  clear  tliat  tlie 
party  calling  a  witness,  will  not  be  allowed  to  give  gen- 
eral evidence  that  he  is  not  to  be  believed  on  his  oath. 
But  a  party  is  not  to  be  sacrificed  to  his  witness ;  he  is 
not  represented  by  him,  nor  ought  to  be  identified  with 
him,  or  bound  by  all  he  may  say.  On  the  other  hand, 
a  party  ought  to  be  placed  under  such  restrictions  as 
may  be  necessary  for  preventing  unfair  or  dishonest 
practice.  If  a  party,  not  acting  himself  a  dishonest 
part,  is  deceived  by  his  witness,  is  he  to  be  restrained 
from  laying  the  true  state  of  the  case  before  the  court  ? 
Further,  if  a  witness,  whether  from  mistake,  ignorance, 
or  design,  gives  evidence  unfavorable  to  the  party  who 
calls  him,  is  the  party  to  be  restrained  from  calling  other 
witnesses  to  prove  facts  difi'ereut  from  those  which  he 
has  represented  ?  The  ride  is,  that  where  a  witness  is 
called,  and  makes  statements  contrary  to  those  which 
are  expected  from  him,  the  party  calling  him  ma}^  prove 
the  facts  in  question  by  other  witnesses ;  for  such  facts 
are  evidence  in  the  case,  and  the  other  witness  is  not 
called  directly  to  discredit  the  first,  but  the  impeach- 
ment of  his  credit  is  incidental  and  consequential  only. 
Where  a  witness  is  contradicted  by  the  party  calling 
him,  as  to  certain  facts,  it  is  not  necessar}^  that  the  re- 
mainder of  his  evidence  should  l)e  repudiated,  because 
a  party  cannot  prove  his  o^^•n  witnes-*  to  be  of  such  a 
general  bad  character  as  would  I'ender  him  unworthy 
of  credit. 

As. to  Belief.  A  witness  can  depose  to  such  facts 
only  as  are  within  his  own  knowledge,  but  even  in  giv- 
ing evidence  in  chief,  tliere  is  no  rule  which  requires  a 
^yitness  to  dej^ose  to  facts  with  an  expression  of  certainty 


OPINION    OF    WITNESSES.  317 

that  excludes  all  doiiht  in  liis  mind.  It  is  the  constant 
practice  to  receive  in  evidence  a  witness's  belief  of  the 
identity  of  a  person,  or  of  the  fact  of  a  certain  writing 
being  the  handwriting  of  a  particular  individual,  though 
the  witness  will  not  aver  positively  to  these  facts.  A 
witness  must  not  swear  to  impressions  simply ;  that  is 
descending  to  a  test  too  vague.  It  should  be  persuasion 
or  belief  founded  on  facts  within  his  own  knowledge. 
The  testimony  of  a  ^vitness  that  he  thought  the  ])laintiff 
told  him  so  and  so — iva-s'  very  co)iflde7it  he  said  so,  but 
would  not  swear  that  he  did — is  a  statement  of  the 
strength  of  the  recollection  of  a  fact  by  the  witness,  and 
is  admissible  evidence.* 

As  to  Opinion.  Although,  in  general,  a  witness  can- 
not be  asked  what  his  opinion  w^on  a  particular  ques- 
tion is,  since  he  is  called  for  the  speaking  as  to  facts 
only,  yet  where  matter  of  shill  and  judgment  is  involved, 
a  person  competent  to  give  an  oj)inion  may  be  asked 
what  that  opinion  is.  On  a  question  of  mental  caj^acity 
the  opinion  of  an  intimate  acquaintance,  not  a  medical 
man,  is  competent  when  connected  with  facts  and  cir- 
cumstances within  his  knowledge,  and  disclosed  by  him 
in  his  testimony  as  the  foundation  of  his  opinion.  It  is 
not,  in  general,  competent  for  witnesses  to  state  o2:)inions 
or  conclusions  from  facts,  whether  such  facts  are  known 
to  them  or  derived  from  the  testimony  of  others.  The 
exceptions  to  the  inile  are  confined  to  questions  of 
science,  trade,  and  a  fe^v  others  of  the  same  nature. 
Witnesses  conversant  in  a  particular  trade  may  be 
allowed  to  speak  to  a  prevailing  practice  in  that  trade, 
and  scientific  persons  may  give  their  opinion  on  matters 

*  Roscoc,  Crim.  Ev.,  179. 


318  MILITARY    LAW    AXD    COURTS-MARTIAL. 

of  science,  and  medical  men  may  be  asked  whether,  in 
their  judgment  such  and  such  appearances  are  symptoms 
of  insanity  or  other  disease,  <fec.* 

The  ojyinions  of  an  ex^pert  are  evidence,  but  in-ither 
conclusive  nor  exclusive  proof.  Every  person  of  judi- 
cial training  knows  that  the  o2:)inions  of  medical  or  other 
scientific  or  practical  experts  often  differ,  and  that  they 
sometimes  err  in  a  body  as  if  by  some  ej^idemic  conta- 
gion. There  is  a  judicial  case  involving  scientific  in- 
quiry, in  the  printed  record  of  which  are  the  answers 
of  twenty-three  experts  to  the  same  question ;  twenty- 
two  of  them  give  decision  one  way,  and  a  single  one  of 
them  gives  a  reverse  decision  ;  and  in  the  conclusion,  it 
was  proved,  beyond  all  controversy,  that  he  alone  was 
right  and  that  all  the  others  erred.  In  general,  the 
023inions  of  an  expert  are  of  more  or  less  weight  and 
value,  according  to  the  person's  constitution  of  mind^ 
and  the  degree  of  completeness  of  the  collection  of  per- 
tinent facts  on  Avhich  his  mind  acts.f 

Every  question  is  admissil)le  of  a  military  man, 
where  it  is  founded  on  local  knowledge  or  circumstances 
which  are  not  within  the  reach  of  all  the  members  of 
the  court,  as  where  he  gives  his  opinion  as  to  the  exact 
execution  of  a  certain  plan  of  operations,  this  opinion 
beinc:  based  on  facts  witliin  his  actual  knowledcre.  But 
where  it  is  merely  a  question  of  military  science,  to 
affect  the  officer  who  is  undergoing  his  trial,  it  is  obvi- 
ous that  the  court  is  met  for  no  other  piu'pose  but  to  try 
that ;  and  that  they  have  before  them  the  facts  in  evi- 
dence, on  which  they  are  to  ground  their  conclusions. 

*  Roscoe,  Crim.  Ev.,  179,  180. 

f  Attorney-General  Cushing's  Opinion.  May  17th,  1855. 


WITNESSES.  319 

In  conclusion,  it  may  be  remarked  tliat  in  weighing 
the  conflicting  testimony  of  witnesses,  it  onght  not  to 
excite  surprise  that  witnesses  of  fair  reputation  should 
differ  in  minute  points  in  the  relation  of  facts.  An 
exact  accordance  in  the  narration  of  minute  particulars 
would  rather  create  suspicion,  and  tend  to  evince  previ- 
ous contrivance  and  consj)iracy.  The  non-agreement  of 
witnesses,  therefore,  on  points  which  are  not  of  a  j^romi- 
nent  and  striking  nature,  in  many  cases,  may  be  no  im- 
peachment of  their  general  credibility,  and  ought  to  be 
carefully  distinguished  from  mlful  and  corrujDt  mis- 
representations.* 

*  Simmons,  481. 


APPENDIX 


APPENDIX 


No.  1. 

Form  of  Order  appointing  a  General  Court-JTIartial. 

TiiK  last  2iaragi'a})li  omitted  when  the  court  can  be  kejDt  iij) 
with  thirteen  members. 

War  Departiiext, 
Apjutant-General's  Office,  Washington,  Ftb.  2Gth,  186-. 
Special  Orders,  / 
No.  i| 

A  general  court-martial  is  hereby  appointed  to  meet  at  AVest 
Point,  New  York,  on  the  5th  day  of  March,  proximo,  or  as  soon 

thereafter  as  practicable,  for  the  trial  of •  ,  and 

such  other  prisoners  as  may  be  brought  before  it. 

Detail  for  the  Court  : 

1. 8. 

2. 9. 

3. 10. 

4. •      11. 

5. 1± 

6. 13. 

T. ■ Judge  Advocate. 

No  other  officers  than  those  named  can  be  assembled  with- 
out manifest  injury  to  the  service. 

By  order  of  the  Secretary  of  "War, 

L.  T..  Adjutant-General . 


324  APPE]S^DIX. 

No.  2. 

Form  of  Order  appointing  a  Oarrisou  or  Regimental 
Conrt-^TIartial. 

Head-Quarters, 
West  Poixt,  N.  Y..  March  1st,  186-. 
Orders,  ) 
No.      \ 

A  garrison  court-martial  will  convene  at  this  post  to-morrow 

morning,  at  10  o'clock,  for  the  trial  of ,  and  such 

other  prisoners  as  may  be  brought  before  it. 

Detail f 01'  the  Court: 


3. By  order  of  Col.  B. 

E.  C.  B.,  Adjutant. 


I 


]^o.  3. 


Form  of  Order-appointing  a  Court  of  Inquiry. 

War  Departmext. 

Adjutaxt-Gexeral's  Office,  Washixgtox, ,  1S6-. 

Special  Orders,  ) 
No.  f 

By  direction  of  the  President  of  the  United  States  (or,  at  the 

instance  of  Major ),  a  court  of  inquiry  is  hereby  appointed 

to  meet  at  ■ on ,  or  as  soon  thereafter  as  jDracticable,  to 

investigate  the  facts  and  circumstances  connected  with,  (fcc, 
and  also  give  their  opinion  upon  the  facts  wdiich  may  be  de- 
del  oped. 

Detail  for  the  Court : 

1. 

2. 

3. 

eliulge  Advocate. 

By  order  of  the  Secretary  of  "War, 
??  L,  T.,  Adjutant-General. 


FOEMS.  325 

No.  -i. 

Form  of  Order  appointing  a  Board  for  retiring  Disabled 
Offleers. 

War  Departmext, 

Adjutant-General's  Office,  Washington, ,  186-. 

Special  Orders,  } 
No.  f 

I.  By  direction  of  the  President,  a  board  of  officers  will 
assemble  in  this  city  at  12  m.  on  the  2Stli  instant,  or  as  soon 
thereafter  as  practicable,  to  examine  into  and  determine  the 
facts  in  relation  to  the  natnre  and  occasion  of  the  disability  of 
such  officers  disabled  to  perform  military  service  as  may  be 
brought  before  it. 

The  board  will  be  guided  in  its  action  by  such  sections  of 
the  act  of  Congress  approved  August  3,  1861,  providing  for  it, 
as  may  be  applicable  to  the  subject. 

Detail  for  the  Board : 

1. 

2. 

3. 

4. 

5. 


-,  will  act  as  recorder  of  the  board. 
By  order, 

L.  T.,  Adjutant-General. 


No.  5. 
inodc  of  recording  the  Proceeding^)  of  a  Court-ITIartial. 

Proceedings  of  a  general  court-martial,  which  convened  at 
^Yest  Point,  Xew  York,  by  virtue  of  the  following  Special 
Order. 

{Ilcre  insert  a  copy  of  the  order.) 


326  APPENDIX, 

West  Poixt,  X.  Y.,  3farch  5th.  186-. 
10  A.  M.     Tlie  court  met  pursuant  to  the  foregoing  order. 
Present. 

1.  Lieut.-Col.  G.  D.  R.,  Ordnance  Department. 

2.  Major  C.  C.  A.,  IStli  Regiment  of  Infantry. 

3.  Captain  K.  G.,  5th  Regiment  of  Cavahy. 

4.  Captain  D.  D.  P.,  4th  Regiment  of  Artillery. 

5.  Captain  J.  G.  P.,  Toj^og.  Engineers. 

&c.  etc. 

Captain  II.  E.  M.,  lOtli  Regiment  of  Infantry,  Judge  Advo- 
cate. 

Ahs€7iL 

Captain  A.  B.  C,  1st  Regiment  of  Artillery. 
Captain  S.  B.,  Assistant  Adjutant-General. 

The  Judge  Advocate  read  a  communication  from  Captain  C, 
stating  the  cause  of  his  absence,  &c.  ;  the  letter  is  appended 
and  marked . 

"  The  cause  of  Captain  B.'s  absence  not  known." 

The  court  then  proceeded  to  the  trial  of  Lieutenant  X.  T., 

Regiment  of  Infantry,  who  was  called  before  the  court,  and 

having  heard  the  order  aj^pointing  the  court  read,  was  asked, 
if  he  had  any  objection  to  any  member  named  in  the  order. 

Tlie  accused  objected  to  Captain ,  and  stated  his  cause 

of  challenge  as  follows  : 

(Here  insert  the  statement.) 

Captain remarked  that,  &c. 

The  court  was  cleared,  the  challenged  member  retiring,  and 
after  due  deliberation  the  doors  were  opened,  the  accused  and 
challenged  party  present,  and  the  decision  of  the  court  was 
announced  by  the  judge  advocate,  "  That  the  challenge  is  sus- 
tained as  sufficient,  and  that  Captain  is  excused  from 

serving  as  a  member  of  the  court." 

The  accused  having  no  objections  to  any  of  the  other  mem- 
bers, the  court  was  then,  in  his  presence,  duly  sworn  by  the 
judge  advocate,  and  the  judge  advocate  was  duly  sworn  by  the 
president  of  the  court. 


FORMS.  827 

Tlie  accused  applied  to  the  court  to  be  permitted  to  introduce 
M.  'N.,  Esq.,  as  liis  counsel,  which  application  was  granted,  and 
he  appeared  as  counsel  for  the  accused.* 

The  accused.  Lieutenant  X.  Y., Eegimcnt  of  Infantry, 

was  arraigned  on  the  following  charge  and  specification. 

Chakge. — Drunkenness  on  duty. 

Sj)ecificatio7i.— In  this,  that  he,  Lieutenant  X.  Y.,  of  the 

Regiment  of  Lifantry,  was  drunk  whilst  on  duty  at  company 
drill.  All  this  at on  or  about  the  lOtli  day  of  Janu- 
ary, 186-. 

To  which  charge  and  specification  the  accused  pleaded  as 
follows : 

To  the  specification — "  Not  guilty." 

To  the  CHAKGE — "  Not  guilty."t 

Captain  O.  P.,  5th  Artillery,  a  witness  for  the  prosecution, 
was  duly  sworn. 

Question  by  judge  advocate. 

Answer. 

Question  by  judge  advocate. 

Answer. 

Question  by  defence. 

Answer. 

Question  by  defence. 

Answer. 

Question  by  judge  advocate. 

Answer. 

Question  by  the  court. 

Answer,  etc. 

Tlie  prosecution  here  closed. 

Lieutenant  R.  S.,  7th  Lifantry,  a  witness  for  the  defence,  was 
duly  sworn. 

Question  by  defence. 

Answer. 

*  Application  for  delay  or  postponement  of  trial  must  now  be  made, 
f  All  persons  present  in  court,  who  have  been  summoned  as  witnesses,  are  now 
directed  to  withdraw  and  remain  in  wailing  untri  called  for. 


328  APPENDIX. 

Question  by  judge  advocate. 

Answer. 

Question  by  defence. 

Answer. 

Question  by  the  court. 

Answer,  tfcc. 

Tlie  accused  having  no  further  testimony  to  offer,  requested 
until  to-morrow  to  prepare  his  final  defence.  The  court  grant- 
ed his  request,  and  adjourned  to  meet  again  at  10  o'clock  a.  m., 
tr)-raorrow,  the  6th  inst. 

West  Point,  N.  Y.,  March  m,  186-. 

10  A.  M.  The  court  met  pursuant  to  adjournment.  Present, 
same  members  as  yesterday,  the  judge  advocate,  and  the  ac- 
cused and  his  counsel. 

The  proceedings  of  yesterday  having  been  read  by  the  judge 
advocate,  the  accused,  Lieutenant  X.  Y.,  presented  the  written 

address  (appended  and  marked ),  which  was  read  by  his 

counsel  in  his  defence. 

The  judge  advocate  submitted  the  case  to  the  court  without 
remark.* 

The  court  was  then  cleared  for  deliberation,  and  having  ma- 
turely considered  the  evidence  adduced,  find  the  accused.  Lieu- 
tenant X.  Y.,  of  tlie Regiment  of  Lifantry,  as  follows  : 

Of  the  specification — "  Guilty." 

Of  the  CHARGE — "Guilty." 

And  the  court  do,  therefore,  sentence  him.  Lieutenant  X.  Y., 
of  the Kegiment  of  Infantry,  to  he  casliiered. 

G.  D.  P.., 
II.  E.  M.,  Lieutenant-colonel  of  Ordnance^ 

Captain  10th  Infantry,  President. 

Judge  Advocate. 


*  Should  the  judge  advocate  intend  to  reply,  he  here  notifies  the  court,  and  may 
ask  for  requisite  time  for  preparation. 


I 


FOUMS.  329 

There  being  no  further  business  before  them  the  court  ad- 
journed sine  die. 

G.  D.  E., 
II.  E.  M.,  Lieutenant- colonel  of  Ordnance, 

Capain  10th  Infantry,  President. 

Judge  Advocate. 


No.  6. 

Form  of  General  Order  coiifirmiiig;  or  disapproving  the 
Proceedings  of  a  General  Court-IUartial. 

War  Department, 
Adjutant-Gexeral's  Office,  Washington,  March  30tJi,  1S6-. 

Gexeral  Orders,  ) 
No.  f 

I.  At  the  general  court-martial   which  convened   at  West 

Point,  N.  y.,  pursuant  to  "  Special  Orders,"  ISTo.  — ,  of , 

186-,  from  the  War  Department,  and  of  which  Lieutenant- 
Colonel   G.  D.   R.,  Ordnance  Department,  is  president,  was 

arraigned  and  tried.  Lieutenant  X.  Y.,  of  the Eegiment 

of  Infantry,  on  the  following  charge  and  specification : 

Charge. — Drunkenness  on  duty. 

Specification. — In  this,  that  he.  Lieutenant  X.  Y.,  of  the 

Regiment  of  Infantry,  was  di'unk  whilst  on  duty  at  company 

drill.     All  this ,  on  or  about  the  lOtli  day  of  January, 

1S6-. 

To  which  charge  and  specification  the  accused  pleaded  as 
follows : 

To  the  specification — "  Not  guilty." 

To  the  CHARGE — "  Not  guilty." 

FINDINGS   OF   THE   COURT. 

Tlie  court,  after  having  maturely  considered  the  evidence 
adduced,  find  the  accused,  Lieutenant  X.  Y.,  — —  Regiment  of 
Infantry,  as  follows : 


330  APPENDIX. 

Of  the  specification — "  Guilty." 
Of  the  CHARGE — "  Guilty.'' 

SENTENCE. 

And  the  court  do,  therefore,  sentence  him,  Lieutenant  X.  Y., 
—  Regiment  of  Infantry,  '■'■to  he  cashiered.'''' 

II.  In  conformity  with  the  65th  of  the  rules  and  articles  of 
war,  the  proceedings  of  the  foregoing  court-martial  have  been 
transmitted  to  the  Secretary  of  War,  and  by  him  laid  before 
the  President,  by  whom  they  have  been  confirmed. 

III.  Lieutenant  X.  Y.,  accordingly,  ceases  to  be  an  officer 
of  the  army  from  this  date. 

lY.  The  general  court-martial  of  which  Lieutenant-Colonel 
G.  D.  R.  is  president,  is  dissolved. 

By  order  of  the  Secretary  of  War, 

L.  T., 
Adjutant-General. 


No.  7. 

Form  of  Judge  Advocate's  Certificate. 

I  certify  that  Major  A.  B.  C,  5th  Infantry,  has,  from  the  5th 
to  the  10th  February,  1S6-,  both  days  inclusive,  been  in  attend- 
ance as  member  of  a  general  court-martial  which  convened  at 
Fort  Monroe,  Ya.,  February  5th,  186-,  by  virtue  of  "  Special 
Orders,"  No.  — ,  from  the  War  Department,  Adjutant-General's 

Office,  Washington, ,  1S6-. 

D.  E.  F., 
Lieutenant  and  Judge  Advocate. 
FoKT  Monroe,  Ya.,  February  lO^A,  1S6-. 


FOKMS.  331 

No.  8. 

Forms  of  Charges  and  Specifications  under  dlfTerent 
Articles  of  War. 

All  charges  are  licaded  as  follows  : 

CHAUGKS    AND    SPECIFICATIONS    PKEFEKRED   AGAINST : 

Charge. —  Violation  of  the  seventh  article  of  xoar. 

Specification. — In  this  :  That  lie,  Private  D ,  of  com- 
pany G  Mounted  Riflemen,  did  begin,  or  cause,  a  mutiny  in 
company  G  Mounted  Riflemen,  and  in  the  execution  or  fur- 
therance of  which,  he,  the  said  D ,  did  resist  the  lawful 

authority  of  his   superior,    Sergeant  "W" ,  of  company  G 

Mounted  Riflemen,  and  did,  with  a  revolving  pistol,  then  and 

there  shoot  and  kill  the  said  Sergeant  W ,  who,  being  in  the 

execution  of  his  offlce,  was  endeavoring  to  quell  the  disorderly 

conduct  of  the  said  D and  other  soldiers  :  This  at  the  camp 

of  said  company  at  the ,  Texas,  on  or  about  the  thirtieth 

day  of  June,  in  the  y(!ar  one  thousand  eight  hnndred  and  fifty - 
five. 

Charge. —  Violation  of  the  ninth  article  of  loar. 

Spec ffi cat  1071. — In  this  :  That  he,  W.  II.,  an  enlisted  soldier 
in  the  service  of  the  United  States,  acting  corporal  of  company 
D  2d  Infantry  United  States  army,  did  offer  violence  against 
Brevet  Lieutenant-Colonel  C ,  captain  3d  Regiment  of  In- 
fantry United  States  army,  M-hile  in  the  execution  of  his  office, 
l)y  discharging  at  him,   the   said    Brevet  Lieutenant-Colonel 

C ,  a  loaded  musket,  thereby  causing  his  death.     This  on 

the  road  from  San  Diego,  California,  to  Camp  Yuma,  Cali- 
fornia, on  or  about  the  6th  day  of  June,  1S5-. 

CiiAiiGE. — Disohedience  of  Orders. 

Specifiication. — In  this :  That  he.  First  Lieutenant  A.  B.,  1st 
Regiment  of  Infantry,  L^nited  States  army,  having  received  or- 
ders from  the  C^juimanding  General  of  the  army,  in  Xew  York, 
on  the  Felu'uary,  1S5-,  to  proceed  on  the March, 


332  APPENDIX. 

1 85-,  to  join  his  company,  did  disobey  said  orders ;  and  did, 
without  leave  and  in  disobedience  of  said  orders,  remain  absent 
from  his  com])any,  and  from  duty,  till  on  or  about  the  —  Jnly, 
185-. 

Charge. — Deserlion. 

Specification. — In  this :  That  he,  J.  C,  an  enlisted  soldier 
in  the  service  of  the  United  States,  private  of  company  D,  2d 
Infantry,  United  States  army,  did  desert  the  said  service  from 

,  on  or  about  the  31st  day  of  May,  185-,  and  did 

remain  absent  from  said  service  until  delivered  up  as  a  prisoner 
at  the ,  on  or  about  the  16th  day  of  June,  1S5-. 

Charge. — Misapplication  and  emhezzlement  of  j^ublic  money 
intrusted  to  Mm. 

Specification. — In    that    he,  Captain  D.  E.  F at  

on ,  did  then  and  there  take,  convert  to  his  use,  misapply 

and  embezzle  a  large  sum,  that  is  to  say,  twenty  thousand 
seven  hundred  and  one  dollars  and  two  cents  ($20,701.02), 
public  money  of  the  United  States,  intrusted  to  him  for  the 
service  of  the  department. 

Charge. — Breach  of  arrest. 

Specification. — In  this:  that  Major  G.  II ,  after  being 

placed  in  arrest  by  General  B.,  in  Special  Orders,  dated  Sep- 
tember 1st,  1861,  did  leave  his  confinement  before  he  was  set 
at  liberty  by  his  commanding  officer  or  by  a  superior  officer, 
by  going  beyond  the  limits  assigned  to  him  by  orders,  dated 
September  1st,  1861,  and  signed  by  General  B.,  commanding, 

&c.     This  at  or  near  ,  on  or  about  the  3d  September, 

.1861. 

Charge. — Conduct  unbecoming  an  officer  and  a  gentleman. 

Specification. — In  this:    that  he,  A.  B ,  did   positively 

deny,  to  one  or  more  commissioned  officers,  tliat  he  had  played 
at  cai'ds  with  private  C,  or  any  other  enlisted  man  of  the  com- 
mand, which  denial  was  false.     This  at  Camp ,  on  or  about 

the ,  1862. 


FORMS.  333 

Under  the  OOtli  article  of  war,  "  all  crimes  not  capital,  and 
all  disorders  and  neglects,  to  the  prejudice  of  good  order  and 
military  discipline^''''  must  be  taken  cognizance  of  by  courts- 
martial.  Therefore  any  crime,  disorder,  or  neglect,  not  speci- 
fied in  some  one  of  the  other  articles,  must  be  charged  undei* 
this  general  article,  the  99th,  thus  : 

"  Conduct  to  the  prejudice  of  good  order  and  military  disci- 
pline." 

"  ISTeglect  of  duty,  to  the  prejudice  of  good  order  and  military 
discipline." 

"  Insubordinate  conduct,  to  the  prejudice  of  good  order  and 
military  discipline."" 

"Tyrannical  conduct,  to  the  prejudice  of  good  order  and  mil- 
itary discipline."  " 

"  Disorders  and  neglects,  to  the  prejudice  of  good  order  antl 
military  disci})line,"  (fee,  &c.,  &c. 

Charge. — Insuhordinate  conduct^  to  the  prejudice  of  good 
order  and  military  discipline. 

Specification  3d.  —  In  that  he,  the  said ,  having  received 

from  the  War  Department,  in  a  letter  dated  January  10,  185-. 
instructions  in  regard  to  breaches  of  discipline,  with  orders  to 
jiublish  said  instructions  to  the  Department  of  Texas,  he,  the 

said ,  did,  at  San  Antonio,  Texas,  on  the  8th  of  February. 

1S5-,  in  contempt  of  the  obedience  and  submission  due  to  the 
said  decision  of  the  President,  accompany  the  publication  to 
the  troops  under  his  command,  with  a  commentary  on  the  in- 
structions designed  to  contradict  and  refute  them,  and  denounc- 
ing them  as  a  "poison,"  and  appealing  from  the  order  of  the 
President,  to  the  troops  under  his  command. 


334  APPENDIX. 


EXTRACTS  FROM  THE  COXSTITUTIOX  OF  THE 
UNITED  STATES,  AND  ITS  AMENDMENTS. 

Article  I.     Section  8.     Tlie  Congress  shall  have  ])Ower 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water ; 

12.  To  raise  and  support  armies,  but  no  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two  years ; 

14.  To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces  ; 

*15.  To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections  and  repel  invasions  ; 

16.  To  provide  for  organizing,  arming,  and  disciplining,  the 
militia,  and  for  governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States,  *  *  *  ; 

17.  To  exercise  exclusive  legislation  in  all  cases  whatsoever, 
*  *  *  over  all  places  purchased  by  the  consent  of  the  legisla- 
ture of  the  state  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dock-vards,  and  other  needful  build- 
ings; *  *  *. 

Section  9. 

2.  The  privilege  of  the  writ  of  haheas  corjyiis  shall  not  be 
suspended,  unless  when  in  cases  of  rebellion  or  invasion  the 
public  safety  may  require  it. 

Article  II.     Section  2. 

1.  The  President  shall  be  the  Commander  in  Chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  states,  when  called  into  the  actual  service  of  the  United 
States ;  *  *  *,  and  he  shall  have  power  to  grant  reprieves  and 
pardons  for  offences  against  the  United  States,  except  in  cases 
of  impeachment. 

Section  3. 

1.  Treason  a<2:ainst  the  United  States,  shall  consist  only  of 


EXTEACTS    FEOM   THE    CONSTITUTION,    ETC-  335 

levying  war  against  them,  or  in  adhering  to  their  enemies,  giv- 
ing them  aid  and  comfort.  No  person  shall  be  convicted  of 
Treason,  nnless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court. 


AMENDMENTS. 

Akticle  IL  a  well  regulated  militia,  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
arms,  shall  not  be  infringed. 

Akt.  in.  No  soldier  shall,  in  time  of  peace,  be  quartered 
in  any  house,  without  the  consent  of  the  owner,  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law. 

Akt.  V.  No  person  shall  be  held  to  answer  for  a  capital, 
or  otherwise  infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  militia,  when  in  actual  service  in  time  of 
war  or  public  danger  ;  nor  shall  any  person  be  subject  for  the 
same  oftence  to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor 
shall  he  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law ;  *  *  *  . 

Art.  VI.  In  all  criminal  prosecutions,  tlie  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  state  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  sliall  have  been  previously  ascer- 
tained by  law,  and  to  be  informed  of  the  nature  and  cause  of 
the  accusation ;  to  be  confronted  with  the  witnesses  against 
him ;  to  have  compulsory  process  for  obtaining  witnesses  in  his 
favor,  and  to  have  assistance  of  counsel  for  his  defence. 

Akt.  VIII.  Excessive  bail  shall  not  be  reipiired,  nor 
excessive  fines  imposed,  nor  cruel  and  unusual  punishments 
inflicted. 


336  APPENDIX. 


AETICLES  OF  WAR. 

AN  ACT  FOR   ESTABLISHING   RULES  AND  AETICLES   FOR   THE  GOVERN- 
MENT  OF   THE    ARMIES   OF   THE   UNITED    STATES.* 

Section  1.  Be  it  enacted^  hy  the  Senate  and  House  of  Rep- 
resentatives of  the  United  States  of  America^  in  Congress  assem- 
hied,  That,  from  and  after  the  passing  of  this  act,  the  following 
shall  be  the  rules  and  articles  bj  which  the  armies  of  the 
United  States  shall  be  governed : 

Article  1.  Every  officer  now  in  the  army  of  the  United 
States  shall,  in  six  months  from  the  passing  of  this  act,  and 
every  officer  who  shall  hereafter  be  appointed  shall,  before  he 
enters  on  the  duties  of  his  office,  subscribe  these  rules  and  reg- 
ulations. 

Art.  2.  It  is  earnestly  recommended  to  all  officers  and  sol- 
diers diligently  to  attend  divine  service ;  and  all  officers  who 
shall  behave  indecently  or  irreverently  at  any  place  of  divine 
worship  shall,  if  commissioned  officers,  be  brought  before  a 
general  court-martial,  there  to  be  publicly  and  severely  repri- 
manded by  the  president ;  if  non-commissioned  officers  or  sol- 
diers, every  person  so  offending  shall,  for  his  first  offence,  forfeit 
one-sixth  of  a  dollar,  to  be  deducted  out  of  his  next  pay ;  for 
the  second  offence,  he  shall  not  only  forfeit  a  like  sum,  but  be 
confined  twenty-four  hours ;  and  for  every  like  oftence,  shall 
suffer  and  pay  in  like  manner ;  which  money,  so  forfeited,  shall 
be  applied,  by  the  captain  or  senior  officer  of  the  troop  or  com- 
pany, to  the  use  of  the  sick  soldiers  of  the  company  or  troop  to 
which  the  offender  belongs. 

Art.  3.  Any  non-commissioned  officer  or  soldier  who  shall 
use  any  profane  oath  or  execration,  shall  incur  the  penalties 
expressed  in  the  foregoing  article ;  and  a  commissioned  officer 

*  These  rules  and  articles,  with  the  exceptions  indicated  by  the  notes,  annexed 
to  articles  20,  55,  G5,  87,  and  section  2,  remain  unaltered,  and  in  force  at  present. 


i 


ARTICLES    OF    WAR.  337 

shall  forfeit  and  pay,  for  each  and  every  such  offence,  one  dol- 
lar, to  be  applied  as  in  the  preceding  article. 

Art.  4.  Every  chaplain  commissioned  in  tlie  army  or  armies 
of  the  United  States,  who  shall  absent  himself  from  the  duties 
assigned  him  (excepting  in  cases  of  sickness  or  leave  of  absence), 
shall,  on  conviction  thereof  before  a  court-martial,  be  fined  not 
exceeding  one  month's  pay,  besides  the  loss  of  his  pay  during 
his  absence ;  or  be  discharged,  as  the  said  court-martial  shall 
judge  proper. 

Akt.  5.  Any  officer  or  soldier  wlio  sliall  use  contemptuous 
or  disrespectful  words  against  the  President  of  the  United 
States,  against  the  Vice-President  thereof,  against  the  Congress 
of  the  United  States,  or  against  the  Chief  Magistrate  or  Legis- 
lature of  any  of  the  United  States,  in  which  Ik  may  be  quar- 
tered, if  a  commissioned  officer,  shall  be  cashiered,  or  otherwise 
pmiished,  as  a  court-martial  shall  direct;  if  a  non-commissioned 
officer  or  soldier,  he  shall  suifer  such  punishment  as  shall  be 
inflicted  on  him  by  the  sentence  of  a  court-martial. 

Akt.  6.  Any  officer  or  soldier  who  shall  behave  himself  with 
contempt  or  disrespect  toward  his  commanding  officer,  shall  be 
punished,  according  to  the  nature  of  his  offence,  by  the  judg- 
ment of  a  court-martial. 

Art.  7.  Any  officer  or  soldier  who  shall  begin,  excite,  cause, 
or  join  in,  any  mutiny  or  sedition,  in  any  troop  or  company  in 
the  service  of  the  United  States,  or  in  any  party,  post,  detach- 
ment, or  guard,  shall  suffer  death,  or  such  other  punishment  as 
by  a  court-martial  shall  be  inflicted. 

Art.  8.  Any  officer,  non-commissioned  officer,  or  soldier, 
who,  being  present  at  any  mutiny  or  sedition,  does  not  use  his 
utmost  endeavor  to  suppress  the  same,  or,  coming  to  the  knowl- 
edge of  any  intended  mutiny,  does  not,  without  delay,  give 
information  thereof  to  his  commanding  officer,  shall  be  pun- 
ished by  the  sentence  of  a  court-martial  with  death,  or  other- 
wise, according  to  the  nature  of  his  offence. 

Art.  9.  Any  officer  or  soldier  who  shall  strike  his  superior 
officer,  or  dra-\v  or  lift  up  anv  weapon,  or  offer  any  violence 
22 


338  APPENDIX. 

against  liim,  being  in  tlie  execution  of  his  office,  on  any  pre- 
tence -whatsoever,  or  sliall  disobey  any  lawful  command  of  his 
superior  officer,  shall  suffer  death,  or  such  other  punishment  as 
Bhall,  according  to  the  nature  of  his  offence,  be  inflicted  upon 
him  by  the  sentence  of  a  court-martial. 

Akt.  10.  Every  non-commissioned  officer  or  soldiei",  who 
shall  enlist  himself  in  the  service  of  the  United  States,  shall,  at 
the  time  of  his  so  enlisting,  or  within  six  days  afterward,  have 
the  articles  for  tlie  government  of  the  armies  of  the  United 
States  read  to  him,  and  shall,  by  the  officer  who  enlisted  him, 
or  by  the  commanding  officer  of  the  troop  or  company  into 
which  he  was  enlisted,  be  taken  before  the  next  justice  of  the 
peace,  or  chief  magistrate  of  any  city  or  town  corporate,  not 
being  an  officer  of  the  army,  or  where  recourse  cannot  be  had 
to  the  civil  magistrate,  before  the  judge  advocate,  and  in  his 
presence  -shall  take  the  following  oath  or  affirmation  :  "  I,  A. 
B.,  do  solemnly  swear  or  affirm  (as  the  case  may  be),  that  I 
will  bear  true  allegiance  to  the  United  States  of  America,  and 
that  I  will  serve  them  honestly  and  faithfully  against  all  their 
enemies  or  opposers  whatsoever;  and  observe  and  obey  the 
orders  of  the  President  of  the  United  States,  and  the  orders  of 
the  officers  appointed  over  me,  according  to  the  rules  and  arti- 
cles for  the  government  of  the  armies  of  the  United  States." 
Which  justice,  magistrate,  or  judge  advocate  is  to  give  to  the 
officer  a  certificate,  signifying  that  the  man  enlisted  did  take 
the  said  oath  or  affirmation. 

Art.  11.  After  a  non-commissioned  officer  or  soldier  shall 
have  been  duly  enlisted  and  sworn,  he  shall  not  be  dismissed 
the  service  without  a  discharge  in  writing ;  and  no  discharge 
sranted  to  him  shall  be  sufficient  which  is  not  signed  bv  a  field 
officer  of  the  regiment  to  wliich  he  belongs,  or  commanding 
officer,  where  no  field  officer  of  the  regiment  is  present ;  and 
no  discharge  shall  be  given  to  a  non-commissioned  officer  or 
soldier  before  his  term  of  service  has  expired,  Init  by  order  of 
the  President,  the  Secretary  of  War,  the  commanding  officer  of 
a  department,  or  the  sentence  of  a  general  court-martial ;  nor 


ARTICLES    OF    WAR.  339 

shall  a  commissioned  officer  be  discharged  the  service  hut  by 
order  of  the  President  of  the  United  States,  or  by  sentence  of  a 
general  court-martial. 

Akt.  12.  Every  colonel,  or  other  officer  commanding  a  regi- 
ment, troop,  or  company,  and  actually  quartered  with  it,  may 
give  furloughs  to  non-commissioned  officers  or  soldiers,  in  such 
numbers,  and  for  so  long  a  time,  as  he  shall  judge  to  be  most 
consistent  with  the  good  of  the  service ;  and  a  captain,  or 
other  inferior  officer,  commanding  a  troop  or  company,  or  in 
any  garrison,  fort,  or  barrack  of  the  United  States  (his  field  offi- 
cer being  absent),  may  give  furloughs  to  non-commissioned 
officers  or  soldiers,  for  a  time  not  exceeding  twenty  days  in  six 
months,  but  not  to  more  than  two  persons  to  be  absent  at  the 
same  time,  excepting  some  extraordinary  occasion  should  re- 
quire it. 

Akt.  13.  At  every  muster,  the  commanding  officer  of  each 
regiment,  troop,  or  company,  there  present,  shall  give  to  the 
commissary  of  iliusters,  or  other  officer  who  musters  the  said 
regiment,  troop,  or  company,  certificates  signed  by  himself, 
signifying  how  long  such  officers,  as  shall  not  appear  at  the 
said  muster,  have  been  absent,  and  the  reason  of  their  absence. 
In  like  manner,  the  commanding  officer  of  every  troop  or  com- 
pany shall  give  certificates,  signifying  the  reasons  of  the  ab- 
sence of  the  non-commissioned  officers  and  private  soldiers ; 
which  reasons  and  time  of  absence  shall  be  inserted  in  the  mus- 
ter-rolls, opposite  the  names  of  the  respective  absent  officers 
and  soldiers.  The  certificates  shall,  together  with  the  muster- 
rolls,  be  remitted  by  the  commissary  of  musters,  or  other  offi- 
cer mustering,  to  the  Department  of  War,  as  speedily  as  the 
distance  of  the  place  will  admit. 

Akt.  14.  Ever}"  officer  who  shall  be  convicted  before  a  gen- 
eral court-martial  of  having  signed  a  false  certificate  relating 
to  the  absence  of  either  officer  or  private  soldier,  or  relative  to 
his  or  their  pay,  shall  be  cashiered. 

Akt.  15.  Every  officer  who  shall  knowingly  make  a  false 
muster  of  man  or  horse,  and  every  officer  or  commissary  of 


340  APPENDIX. 

musters  who  sliail  willingly  sign,  direct,  or  allow  the  signing 
of  muster-rolls,  wherein  such  false  muster  is  contained,  shall, 
upon  proof  made  thereof,  by  two  witnesses,  before  a  general 
court-martial,  be  cashiered,  and  shall  be  thereby  utterly  disa- 
bled to  have  or  hold  any  office  or  employment  in  the  service  of 
the  United  States. 

Art.  16.  Any  commissary  of  musters,  or  other  officer,  who 
shall  be  convicted  of  having  taken  money,  or  other  thing,  by 
way  of  gratification,  on  mustering  any  regiment,  troop,  or  com- 
pany, or  on  signing  muster-rolls,  shall  be  displaced  from  his 
office,  and  shall  be  thereby  utterly  disabled  to  have  or  hold 
any  office  or  employment  in  the  service  of  the  United  States. 

Aet.  1Y.  Any  officer  who  shall  presume  to  muster  a  person 
as  a  soldier  who  is  not  a  soldier,  shall  be  deemed  guilty  of  hav- 
ing made  a  false  muster,  and  shall  suffer  accordingly. 

Akt.  18.  Every  officer  who  shall  knowingly  make  a  false 
return  to  the  Department  of  War,  or  to  any  of  his  superior 
officers,  authorized  to  call  for  such  returns,  of  the  state  of  the 
regiment,  troop,  or  company,  or  garrison,  under  his  command  ; 
or  of  the  arms,  ammunition,  clothing,  or  other  stores  thereunto 
belonging,  shall,  on  conviction  thereof  before  a  court-martial, 
be  cashiered. 

Art.  19.  The  commanding  officer  of  every  regiment,  troop, 
or  independent  company,  or  garrison,  of  the  United  States, 
shall,  in  the  beginning  of  every  month,  remit,  through  the 
proper  channels,  to  the  Department  of  War,  an  exact  return  of 
the  regiment,  troop,  independent  company,  or  garrison,  under 
his  command,  specifying  the  names  of  the  officers  then  absent 
from  their  posts,  with  the  reasons  for  and  the  time  of  their  ab- 
sence. And  any  officer  who  shall  be  convicted  of  having, 
through  neglect  or  design,  omitted  sending  such  returns,  shall 
be  punished,  according  to  the  nature  of  his  crime,  by  the  judg- 
ment of  a  general  court-martial. 

Art.  20.  All  officers  and  soldiers  who  have  received  pay,  or 
have  been  duly  enlisted  in  the  service  of  the  United  States, 
and  shall  be  convicted  of  having  deserted  the  same,  shall  suffer 


ARTICLES    OF    WAR.  341 

death,  or  sucli  other  punishment  p,s,  by  sentence  of  a  court- 
martial,  shall  be  inflicted.* 

Akt.  21.  Any  non-commissioned  officer  or  soldier  who  shall, 
without  leave  from  his  commanding  officer,  absent  himself  from 
his  troop,  company,  or  detachment,  shall,  upon  being  convicted 
thereof,  be  punished  according  to  the  nature  of  his  offence,  at 
the  discretion  of  a  court-martial. 

Art.  22.  'No  non-commissioned  officer  or  soldier  shall  enlist 
himself  in  any  other  regiment,  troop,  or  company,  without  a 
regular  discharge  from  the  regiment,  troop,  or  company  in 
which  he  last  served,  on  the  penalty  of  being  reputed  a  desert- 
er, and  suffering  accordingly.  And  in  case  any  officer  shall 
knowingly  receive  and  entertain  such  non-commissioned  officer 
or  soldier,  or  shall  not,  after  his  being  discovered  to  be  a  de- 
serter, immediately  confine  him,  and  give  notice  thereof  to  the 
corps  in  which  he  last  served,  the  said  officer  shall,  by  a  court- 
martial,  be  cashiered. 

Akt.  23.  Any  officer  or  soldier  who  shall  be  convicted  of 
having  advised  or  persuaded  any  other  officer  or  soldier  to  de- 
sert the  service  of  the  Ignited  States,  shall  suffer  death,  or  such 
other  punishment  as  shall  be  inflicted  upon  him  by  the  sen- 
tence of  a  court-martial. 

Art.  24.  No  officer  or  soldier  shall  use  any  reproachful  or 
provoking  speeches  or  gestures  to  another,  upon  pain,  if  an 
officer,  of  being  put  in  arrest ;  if  a  soldier,  confined,  and  of 
asking  pardon  of  the  party  offended,  in  the  presence  of  his  com- 
manding officer. 

Art.  25.  No  officer  or  soldier  shall  send  a  challenge  to  an- 
other officer  or  soldier,  to  fight  a  duel,  or  accept  a  challenge  if 
sent,  upon  pain,  if  a  commissioned  officer,  of  being  cashiered ; 
if  a  non-commissioned  officer  or  soldier,  of  suffering  corporeal 
punishment,  at  the  discretion  of  a  court-martial. 

Art.  26.  If  any  commissioned  or  non-commissioned  officer 
commanding  a  guard  shall  knowingly  or  willingly  suffer  any 
person  whatsoever  to  go  forth  to  fight  a  duel,  he  shall  be  pun- 

*  Modified  by  act  of  29th  May,  1830,  and  see  act  of  August  5th,  1861,  sec.  2. 


342  APPENDIX. 

islied  as  a  challenger;  and  all  seconds,  promoters,  and  carriers 
of  challenges,  in  order  to  duels,  shall  be  deemed  principals,  and 
be  punished  accordingly.  And  it  shall  be  the  duty  of  every 
officer  commanding  an  army,  regiment,  company,  post,  or  de- 
tachment, who  is  knowing  to  a  challenge  being  given  or  ac- 
cepted by  any  officer,  non-commissioned  officer,  or  soldier,  un- 
der his  command,  or  has  reason  to  believe  the  same  to  be  the 
case,  immediately  to  arrest  and  bring  to  trial  such  offenders. 

Akt.  27.  All  officers,  of  what  condition  soever,  have  power 
to  part  and  quell  all  quarrels,  frays,  and  disorders,  though  the 
persons  concerned  should  belong  to  another  regiment,  troop,  or 
company ;  and  either  to  order  officers  into  arrest,  or  non-com- 
missioned officers  or  soldiers  into  confinement,  until  their  proper 
superior  officers  shall  be  acquainted  therewith ;  and  whosoever 
shall  refuse  to  obey  such  officer  (though  of  an  inferior  rank),  or 
shall  draw  his  sword  upon  him,  shall  be  punished  at  the  discre- 
tion of  a  general  court-martial. 

Art.  28.  Any  officer  or  soldier  who  shall  upbraid  another 
for  refusing  a  challenge,  shall  himself  be  punished  as  a  chal- 
lenger; and  all  officers  and  soldiers  are  hereby  discharged 
from  any  disgrace  or  opinion  of  disadvantage  which  might 
arise  from  their  having  refused  to  accept  of  challenges,  as  they 
will  only  have  acted  in  obedience  to  the  laws,  and  done  their 
duty  as  good  soldiers  who  subject  themselves  to  discipline. 

Art.  29.  'No  sutler  shall  be  permitted  to  sell  any  kind  of 
liquors  or  victuals,  or  to  keep  their  houses  or  shops  open  for  the 
entertainment  of  soldiers,  after  nine  at  night,  or  before  the  beat- 
ing of  the  reveille,  or  upon  Sundays,  during  divine  service  or 
sermon,  on  the  penalty  of  being  dismissed  from  all  future  sut- 
ling. 

Art.  30.  All  officers  commanding  in  the  field,  forts,  barracks, 
or  garrisons  of  the  United  States,  are  hereby  required  to  see 
that  the  persons  permitted  to  suttle  shall  supply  the  soldiers 
with  good  and  wholesome  provisions,  or  other  articles,  at  a 
reasonable  price,  as  they  shall  be  answerable  for  their  neglect. 

Aet.  31.  No  officer  commanding  in  any  of  the  garrisons, 


ARTICLES    OF    WAR.  343 

forts,  or  barracks  of  the  United  States,  sliall  exact  exorbitant 
prices  for  houses  or  stalls,  let  out  to  sutlers,  or  connive  at  the 
like  exactions  in  others;  nor  by  his  own  autliority,  and  for  his 
private  advanta^-e,  lay  any  duty  or  imposition  upon,  or  be  in- 
terested in,  the  sale  of  any  victuals,  liquors,  or  other  necessaries 
of  life  brought  into  the  garrison,  fort,  or  barracks,  for  the  use 
of  the  soldiers,  on  the  penalty  of  being  discharged  from  the 
service. 

Art.  32.  Every  officer  commanding  in  quarters,  garrisons, 
or  on  the  march,  shall  keej)  good  order,  and,  to  the  utmost  of  his 
power,  redi-ess  all  abutcs  or  disorders  which  maybe  committed 
by  any  officer  or  soldier  under  his  command  ;  if,  upon  complaint 
made  to  him  of  officers  or  soldiers  beating  or  otherwise  ill-treat- 
ing any  person,  or  disturbing  fairs  or  markets,  or  of  commit- 
ting any  kind  of  riots,  to  the  disquieting  of  the  citizens  of  the 
United  States,  he,  the  said  commander,  who  shall  refuse  or 
omit  to  see  justice  done  to  the  offender  or  offenders,  and  repa- 
ration made  to  tlie  party  or  ])arties  injured,  as  far  as  part  of  the 
offender's  pay  shall  enable  him  or  them,  shall,  upon  proof 
thereof,  be  cashiered,  or  otherwise  punished,  as  a  general  court- 
martial  shall  direct. 

Akt.  33.  When  any  commissioned  officer  or  soldier  shall  be 
accused  of  a  capital  crime,  or  of  having  used  violence,  or  com- 
mitted any  offence  against  the  person  or  property  of  any  citizen 
of  any  of  the  United  States,  such  as  is  punishable  l)y  the  known 
laws  of  the  land,  the  commanding  officer  and  officers  of  every 
regiment,  troop,  or  company,  to  which  the  person  or  persons  so 
accused  shall  belong,  are  hereby  required,  upon  application 
duly  made  by,  or  in  behalf  of  the  party  or  parties  injured,  to 
use  their  utmost  endeavors  to  deliver  over  such  accused  person 
or  persons  to  the  civil  magistrate,  and  likewise  to  be  aiding  and 
assisting  to  the  officers  of  justice  in  apprehending  and  securing 
the  person  or  persons  so  accused,  in  order  to  bring  him  or  them 
to  trial.  If  any  commanding  officer  or  officers  shall  willfully 
neglect,  or  shall  refuse,  upon  the  application  aforesaid,  to  de- 
liver over  such  accused  person  or  persons  to  the  civil  magis- 


344  APPENDIX. 

trates,  or  to  be  aiding  and  assisting  to  the  officers  of  justice  in 
apprehending  such  person  or  persons,  the  officer  or  officers  so 
offending  shall  be  cashiered. 

Akt.  34.  If  any  officer  shall  think  himself  wronged  by  his 
colonel,  or  the  commanding  officer  of  the  regiment,  and  shall, 
upon  due  application  being  made  to  him,  be  refused  redress,  he 
may  complain  to  the  general  commanding  in  the  state  or  terri- 
tory where  such  regiment  shall  be  stationed,  in  order  to  obtain 
justice  ;  who  is  hereby  required  to  examine  into  said  complaint, 
and  take  proper  measures  for  redressing  the  wrong  complained 
of,  and  transmit,  as  soon  as  possible,  to  tie  Department  of  War, 
a  true  state  of  such  complaint,  with  the  proceedings  had  thereon. 

Art.  35.  If  any  inferior  officer  or  soldier  shall  think  himself 
wronged  by  his  captain,  or  other  officer,  he  is  to  complain 
thereof  to  the  commanding  officer  of  the  regiment,  who  is 
hereby  required  to  summon  a  regimental  court-martial,  for  the 
doing  justice  to  the  complainant;  from  which  regimental  court- 
martial  either  party  may,  if  he  thinks  himself  still  aggrieved, 
appeal  to  a  general  court-martial.  But  if,  upon  a  second  hear- 
ing, the  appeal  shall  appear  vexatious  and  groundless,  the  per- 
son so  appealing  shall  be  punished  at  the  discretion  of  the  said 
court-martial. 

Art.  36.  Any  commissioned  officer,  store-keeper,  or  commis- 
sary, who  shall  be  convicted  at  a  general  court-martial  of  hav- 
ing sold,  without  a  proper  order  for  that  purpose,  embezzled, 
misapplied,  or  wilfully,  or  through  neglect,  suffered  any  of  the 
provisions,  forage,  arms,  clothing,  ammunition,  or  other  mili- 
tary stores  belonging  to  the  United  States,  to  be  spoiled  or 
damaged,  shall,  at  his  own  expense,  make  good  the  loss  or 
damage,  and  shall,  moreover,  forfeit  all  his  pay,  and  be  dis- 
missed from  the  service. 

Art.  3T.  Any  non-commissioned  officer  or  soldier  who  shall 
be  convicted  at  a  regimental  court-martial  of  liaving  sold,  or 
designedly,  or  through  neglect,  wasted  the  ammunition  deliv- 
ered out  to  him,  to  be  employed  in  the  service  of  the  United 
States,  shall  be  punished  at  the  discretion  of  such  court. 


ARTICLES    OF   WAE.  345 

Akt.  38.  Every  non-commissioned  officer  or  soldier  who 
5] tall  be  convicted  before  a  court-martial  of  having  sold,  lost, 
or  spoiled,  through  neglect,  his  horse,  arms,  clothes,  or  accou- 
trements, shall  undergo  such  weekly  stoppages  (not  exceeding 
the  half  of  his  pay),  as  such  court-martial  shall  judge  sufficient, 
for  repairing  the  loss  or  damage  ;  and  shall  sulfer  conhnement, 
or  such  other  corporeal  punishment  as  his  crime  shall  deserve. 

Art.  39.  Every  officer  who  shall  be  convicted  before  a  court- 
martial  of  having  embezzled  or  misapplied  any  money  with 
which  he  may  have  been  intrusted,  for  the  payment  of  the  men 
under  his  command,  or  for  enlisting  men  into  the  service,  or 
for  other  purposes,  if  a  commissioned  officer,  shall  be  cashiered, 
and  compelled  to  refund  the  money;  if  a  non-commissioned 
officer,  shall  be  reduced  to  the  ranks,  be  put  under  stoppages 
until  the  money  be  made  good,  and  suffer  such  corporeal  pun- 
ishment as  such  court-martial  shall  direct. 

Art.  40.  Every  captain  of  a  troop  or  company  is  charged 
with  the  arms,  accoutrements,  ammunition,  clothing,  or  other 
warlike  stores  belonging  to  the  troop  or  company  under  his 
command,  which  he  is  to  be  accountable  for  to  his  colonel  in 
case  of  their  being  lost,  spoiled,  or  damaged,  not  by  unavoid- 
able accidents,  or  on  actual  service. 

Art.  41.  All  non-commissioned  officers  and  soldiers  who 
shall  be  found  one  mile  from  the  camp  without  leave,  in  writ- 
ing, from  their  commanding  officer,  shall  suffer  such  punish- 
ment as  shall  be  infficted  upon  them  by  the  sentence  of  a  court- 
martial. 

Art.  42.  Xo  officer  or  soldier  shall  lie  out  of  his  quarters, 
garrison,  or  camp  without  leave  from  his  superior  officer,  upon 
penalty  of  being  punished  according  to  the  nature  of  his  offence, 
by  the  sentence  of  a  court-martial. 

Art.  43.  Every  non-commissioned  officer  and  soldier  shall 
retire  to  his  quarters  or  tent  at  the  beating  of  the  retreat ;  in 
default  of  which  he  shall  be  punished  according  to  the  natui-e 
of  his  offence. 

Art.   44.    No   officer,    non-commissioned  officer,  or  soldier 


3-46  APPENDIX. 

shall  fail  in  repairing,  at  the  time  fixed,  to  the  place  of  parade, 
of  exercise,  or  other  rendezvous  appointed  by  his  commanding 
ofiacer,  if  not  prevented  by  sickness  or  some  other  evident  ne- 
cessity, or  shall  go  from  the  said  place  of  rendezvous  without 
leave  from  his  commanding  officer,  before  he  shall  be  regularly 
dismissed  or  relieved,  on  the  penalty  of  being  punished,  accord- 
ing to  the  nature  of  his  offence,  by  the  sentence  of  a  court-mar- 
tial. 

Art.  45.  Any  commissioned  officer  who  shall  be  found 
drunk  on  his  guard,  party,  or  other  duty,  shall  be  cashiered. 
Any  non-commissioned  officer  or  soldier  so  offending  shall  suffer 
such  corporeal  punishment  as  shall  be  inflicted  by  the  sentence 
of  a  court-martial. 

Art.  46.  Any  sentinel  who  shall  be  found  sleeping  upon  his 
post,  or  shall  leave  it  before  he  shall  be  regularly  relieved,  shall 
suffer  death,  or  such  other  punishment  as  shall  be  inflicted  by 
the  sentence  of  a  court-martial. 

Art.  47.  No  soldier  belonging  to  any  regiment,  troop,  or 
company  shall  hire  another  to  do  his  duty  for  him,  or  be  ex- 
cused from  duty  but  in  cases  of  sickness,  disability,  or  leave  of 
absence ;  and  every  6u.ch  soldier  found  guilty  of  hiring  his 
duty,  as  also  the  party  so  hired  to  do  another's  duty,  shall  be 
punished  at  the  discretion  of  a  regimental  court-martial. 

Art.  48.  And  every  non-commissioned  officer  conniving  at 
such  hiring  of  duty  aforesaid,  shall  be  reduced  ;  and  every 
commissioned  officer  knowing  and  allowing  such  ill  practices 
in  the  service,  shall  be  punished  by  the  judgment  of  a  general 
court-martial. 

Art.  49.  Any  officer  belonging  to  the  service  of  the  United 
States,  who,  by  discharging  of  fire-arms,  drawing  of  swords, 
beating  of  drums,  or  by  any  other  means  whatsoever,  shall 
occasion  false  alarms  in  camp,  garrison,  or  quarters,  shall  suffer 
death,  or  such  other  punishment  as  shall  be  ordered  by  the 
sentence  of  a  general  court-martial. 

Art.  50.  Any  officer  or  soldier  who  shall,  without  urgent 
necessity,  or  without  the  leave  of  his  superior  officer,  quit  his 


ARTICLES    OF    WAR.  347 

guard,  platoon,  or  division,  shall  be  pnnislied,  according  to  the 
nature  of  his  offence,  by  the  sentence  of  a  court-martial. 

Art.  51.  No  officer  or  soldier  shall  do  violence  to  any  person 
who  brings  provisions  or  other  necessaries  to  the  camp,  garri- 
son, or  quarters  of  the  forces  of  the  United  States,  employed  in 
any  parts  out  of  the  said  States,  upon  pain  of  death,  or  such 
other  punishment  as  a  court-martial  shall  direct. 

Art.  52.  Any  officer  or  soldier  who  shall  misbehave  himself  '• 
before  the  enemy,  run  away,  or  shamefully  abandon  any  fort, 
post,  or  guard  which  he  or  they  may  be  commanded  to  defend, 
or  speak  words  inducing  others  to  do  the  like,  or  shall  cast 
away  hig  arms  and  ammunition,  or  who  shall  quit  his  post  or 
colors  to  plunder  and  pillage,  every  such  offender,  being  duly 
convicted  thereof,  shall  suffer  death,  or  such  other  punishment 
as  shall  be  ordered  by  the  sentence  of  a  general  court-martial. 

Art.  53.  Any  person  belonging  to  the  armies  of  the  United 
States  who  shall  make  known  the  watchword  to  any  person 
who  is  not  entitled  to  receive  it  according  to  the  rules  and  dis- 
cipline of  war,  or  shall  presume  to  give  a  parole  or  watchword 
different  from  what  he  received,  shall  suffer  death,  or  such  other 
punishment  as  shall  be  ordered  by  the  sentence  of  a  general 
court-martial. 

Art.  54.  All  officers  and  soldiers  arc  to  behave  themselves 
orderly  in  quarters  and  on  their  march ;  and  whoever  shall 
commit  any  waste  or  spoil,  either  in  walks  of  trees,  parks,  war- 
rens, fish-ponds,  houses,  or  gardens,  corn-fields,  enclosures  of 
meadows,  or  shall  maliciously  destroy  any  property  whatsoever 
belonging  to  the  inhabitants  of  the  United  States,  unless  by 
order  of  the  then  commander-in-chief  of  the  armies  of  the  said 
States  shall  (besides  such  penalties  as  they  are  liable  to  by  law), 
be  punished  according  to  the  nature  and  degree  of  the  oflence, 
by  the  judgment  of  a  regimental  or  general  court-martial. 

Art.  55.  "Whosoever,  belonging  to  the  armies  of  the  United 
States  in  foreign  parts,  shall  force  a  safeguard,  shall  sufi'er 
death.* 

*  Modified  by  act  of  February  13th,  1862,  sec.  5. 


348  APPEKDIX. 

Aet.  56.  Whosoever  shall  relieve  the  enemy  with  money,  vic- 
tuals, or  ammunition,  or  shall  knowingly  harbor  or  protect  an 
enemy,  shall  suffer  death,  or  such  other  punishment  as  sliall  be 
ordered  by  the  sentence  of  a  court-martial. 

Art.  57.  Whosoever  shall  be  convicted  of  holding  corre- 
spondence with,  or  giving  intelligence  to,  the  enemy,  either 
directly  or  indirectly,  shall  suffer  death,  or  such  other  punish- 
ment as  shall  be  ordered  by  the  sentence  of  a  court-martial. 

Art.  58.  All  public  stores  taken  in  the  enemy's  camp,  towns, 
forts,  or  magazines,  whether  of  artillery,  ammunition,  clothing, 
forage,  or  provisions,  shall  be  secured  for  the  service  of  the 
United  States ;  for  the  neglect  of  which  the  commanding  offi- 
cer is  to  be  answerable. 

Art.  59.  If  any  commander  of  any  garrison,  fortress,  or  post 
shall  be  compelled,  by  the  officers  and  soldiers  under  his  com- 
mand, to  give  up  to  the  enemy,  or  to  abandon  it,  the  commis- 
sioned officers,  non-commissioned  officers,  or  soldiers  who  shall 
be  convicted  of  having  so  offended,  shall  suffer  death,  or  such 
other  punishment  as  shall  be  inflicted  upon  them  by  the  sen- 
tence of  a  court-martial. 

Art.  60.  All  sutlers  and  retainers  to  the  camp,  and  all  per- 
sons whatsoever,  serving  with  the  armies  of  tlie  United  States 
in  the  field,  though  not  enlisted  soldiers,  are  to  be  subject  to 
orders,  according  to  the  rules  and  discipline  of  war. 

Art.  61.  Officers  having  brevets  or  commissions  of  a  prior 
date  to  those  of  the  regiment  in  which  they  serve,  may  take 
place  in  courts-raartial  and  on  detachments,  when  composed  of 
different  corps,  according  to  the  ranks  given  them  in  their 
brevets  or  dates  of  their  former  commissions ;  but  in  the  regi- 
ment, troop,  or  company  to  which  such  officers  belong,  they 
shall  do  duty  and  take  rank  both  in  courts-martial  and  on  de- 
tachments which  shall  be  composed  of  their  own  corps,  accord- 
ing to  the  commissions  by  which  they  are  mustered  in  the  said 
corps. 

Art.  62.  If,  upon  marches,  guards,  or  in  quarters,  different 
corps  of  the  army  shall  happen  to  join,  or  do  duty  together, 


ARTICLES    OF    WAE.  349 

the  oflScer  highest  in  rank  of  the  line  of  the  army,  marine  corps, 
or  militia,  by  commission,  there  on  duty  or  in  quarters,  shall 
command  the  whole,  and  give  orders  for  what  is  needful  to  the 
service,  unless  otherwise  specially  directed  by  the  President  of 
the  United  States,  according  to  the  nature  of  the  case. 

Akt.  03.  The  functions  of  the  engineers  being  generally  con- 
fined to  ^e  most  elevated  branch  of  military  science,  they  are 
not  to  assume,  nor  are  they  subject  to  be  ordered  on  any  duty 
beyond  the  line  of  their  immediate  profession,  except  by  the 
special  order  of  the  President  of  the  United  States ;  but  they 
are  to  receive  every  mark  of  respect  to  which  their  rank  in  the 
army  may  entitle  them  respectively,  and  are  liable  to  be  trans- 
ferred, at  the  discretion  of  the  President,  from  one  corps  to  an- 
other, regard  being  paid  to  rank. 

Art.  64.  General  courts-martial  may  consist  of  any  number 
of  commissioned  otficers,  from  five  to  thirteen,  inclusively  ;  but 
they  shall  not  consist  of  less  than  thirteen  where  that  number 
can  be  convened  without  manifest  injury  to  the  service. 

Art.  65.*  Any  general  officer  commanding  an  army,  or  col- 
onel commanding  a  separate  department,  may  appoint  general 
courts-martial  whenever  necessary.  But  no  sentence  of  a  court- 
martial  shall  be  carried  into  execution  iintil  after  the  wliole 
proceedings  shall  have  been  laid  before  the  officer  ordering  the 
same,  or  the  officer  commanding  the  troops  for  the  time  being ; 
neither  shall  any  sentence  of  a  general  court-martial,  in  time 
of  peace,  extending  to  the  loss  of  life,  or  the  dismission  of 
a  commissioned  officer,  or  which  sliall,  either  in  time  of  peace 
or  war,  respect  a  general  officer,  be  carried  into  execution,  until 
after  the  whole  proceedings  shall  have  been  transmitted  to  the 
Secretary  of  War,  to  be  laid  before  the  President  of  the  United 
States  for  his  confirmation  or  disapproval,  and  orders  in  the 
case.  All  other  sentences  may  be  confirmed  and  executed  by 
the  officer  ordering  the  court  to  assemble,  or  the  commanding 
officer  for  the  time  being,  as  the  case  may  be. 

Art.  66.  Every  officer  commanding  a  regiment  or  corps  may 
*  Modified  hy  act  of  29th  May,  1830,  and  December  2itli,  18G1. 


350  appe:n^dix. 

appoint,  for  his  own  regiment  or  corps,  conrts-martial,  to  con- 
sist of  three  commissioned  officers,  for  the  trial  and  pimisliment 
of  offences  not  capital,  and  decide  upon  their  sentences.  For 
the  same  purpose,  all  officers  commanding  any  of  the  garrisons, 
forts,  Ijarracks,  or  other  places  where  the  troops  consist  of  dif- 
ferent corps,  may  assemble  courts-martial,  to  consist  of  three 
commissioned  officers,  and  decide  npon  their  sentencqg, 

Akt.  67.  No  garrison  or  regimental  court-martial  shall  have 
the  power  to  try  capital  cases  or  commissioned  officers;  neither 
shall  they  inflict  a  fine  exceeding  one  month's  pay,  nor  imprison 
nor  put  to  hard  labor,  any  non-commissioned  officer  or  soldier 
for  a  longer  time  than  one  month. 

Art.  68.  "Whenever  it  may  be  found  convenient  and  neces- 
sary to  the  public  service,  the  officers  of  the  marines  shall  be 
associated  with  the  officers  of  the  land  forces,  for  the  purpose 
of  holding  courts-martial,  and  trying  offenders  belonging  to 
either ;  and,  in  such  cases,  the  orders  of  the  senior  officer  of 
either  corps  who  may  be  present  and  duly  authorized  shall  be 
received  and  obeyed. 

Art.  69.  The  judge  advocate,  or  some  person  deputed  by  him, 
or  by  the  general,  or  officer  commanding  the  army,  detachment, 
or  garrison,  shall  prosecute  in  the  name  of  the  United  States, 
but  shall  so  far  consider  himself  as  counsel  for  the  prisoner, 
after  the  said  prisoner  shall  have  made  his  plea,  as  to  object  to 
any  leading  question  to  any  of  the  witnesses,  or  any  question 
to  the  prisoner,  the  answer  to  which  might  tend  to  criminate 
himself;  and  administer  to  each  member  of  the  court,  before 
they  proceed  upon  any  trial,  the  folloM'ing  oath,  which  shall 
also  be  taken  by  all  members  of  the  regimental  and  garrison 
courts-martial : 

"  You,  A.  1>.,  do  swear  that  you  will  well  and  truly  try  and 
determine,  according  to  evidence,  the  matter  now  before  you, 
between  the  United  States  of  America  and  the  prisoner  to  be 
tried,  and  that  you  will  duly  administer  justice,  according  to 
the  provisions  of  'An  Act  establishing  Kules  and  Articles  for 
the  government  of  the  armies  of  the  United  States,'  without 


ARTICLES    OF    WAR.  351 

partiality,  favor,  or  affection ;  and  if  any  doubt  should  arise, 
not  explained  by  said  articles,  according  to  your  conscience, 
the  best  of  your  understanding,  and  the  custom  of  war  in  like 
cases ;  and  you  do  further  swear,  that  you  will  not  divulge  the 
sentence  of  the  court  until  it  shall  be  published  by  the  proper 
authority ;  neither  will  you  disclose  or  discover  the  vote  or 
opinion  of  any  ]jcirticular  member  of  the  court-martial,  unless 
required  to  give  evidence  thereof,  as  a  witness,  by  a  court  of 
justice,  in  a  due  course  of  law.     So  help  you  God." 

And  as  soon  as  the  said  oath  shall  have  been  administered  to 
the  respective  members,  the  president  of  the  court  shall  admin- 
ister to  the  judge-advocate,  or  person  officiating  as  such,  an 
oath  in  the  following  words  : 

"  You,  A.  B.,  do  swear,  that  you  will  not  disclose  or  discover 
the  vote  or  opinion  of  any  particular  member  of  the  court-mar- 
tial, unless  required  to  give  evidence  thereof,  as  a  witness,  by  a 
court  of  justice,  in  due  course  of  law  ;  nor  divulge  the  sentence 
of  the  court  to  any  but  the  proper  authority,  until  it  shall  be 
duly  disclosed  by  the  same.     So  help  you  God." 

Art.  70.  "Wlien  a  prisoner,  arraigned  before  a  general  court- 
martial,  shall,  from  obstinacy  and  deliberate  design,  stand 
mute,  or  answer  foreign  to  the  purpose,  the  court  may  proceed 
to  trial  and  judgment  as  if  the  prisoner  had  regularly  pleaded 
not  guilty. 

Art.  71.  When  a  member  shall  be  challenged  by  a  prisoner, 
he  must  state  his  cause  of  challenge,  of  which  the  court  shall, 
after  due  deliberation,  determine  the  relevancy  or  validity,  and 
decide  accordingly  ;  and  no  challenge  to  more  than  one  mem- 
ber at  a  time  shall  be  received  by  the  court. 

Art.  72.  All  the  members  of  a  court-martial  are  to  behave 
with  decency  and  calmness ;  and  in  giving  their  votes  are  to 
begin  with  the  youngest  in  commission. 

Art.  73.  All  persons  who  give  evidence  before  a  court-mar- 
tial are  to  be  examined  on  oath  or  affirmation,  in  the  following 
form  : 

"  You  swear,  or  affirm  (as  the  case  mav  be"),  the  evidence 


352  APPENDIX. 

yon  sliall  give  in  tlie  cause  now  in  hearing  sliall  be  tlie  triitli, 
tlie  whole  truth,  and  notliing  but  the  truth.  So  help  you 
God." 

Art.  T4-.  On  the  trials  of  cases  not  capital,  before  courts- 
martial,  the  deposition  of  witnesses,  not  in  the  line  or  staff  of 
the  army,  may  be  taken  before  some  justice  of  the  peace,  and 
read  in  evidence;  provided  the  prosecutor  and.  person  ac- 
cused are  present  at  the  taking  the  same,  or  are  duly  notified 
thereof. 

Art.  T5.  'No  officer  shall  be  tried  but  by  a  general  court- 
martial,  nor  by  officers  of  an  inferior  rank,  if  it  can  be  avoided. 
Nor  shall  any  proceedings  of  trials  be  carried  on,  excepting 
between  the  hours  of  eight  in  the  morning  and.  three  in  the 
afternoon,  excepting  in  cases  which,  in  the  opinion  of  the 
officer  appointing  the  court-martial,  require  immediate  ex- 
ample. 

Art.  76.  No  person  whatsoever  shall  use  any  menacing 
words,  signs,  or  gestures,  in  presence  of  a  court-martial,  or 
shall  cause  any  disorder  or  riot,  or  disturb  their  proceedings, 
on  the  penalty  of  being  punished  at  the  discretion  of  the  said 
court-martial. 

Art.  YT.  "Whenever  any  officer  shall  be  charged  with  a 
crime,  he  shall  be  arrested  and  confined  in  his  barracks,  quar- 
ters, or  tent,  and  deprived  of  his  sword  by  the  commanding  offi- 
cer. And  any  officer  who  shall  leave  his  confinement  before 
he  shall  be  set  at  liberty  by  his  conmianding  officer,  or  by  a 
superior  officer,  shall  be  cashiered. 

Art.  Y8.  Non-commissioned  officers  and  soldiers,  charged 
with  crimes,  shall  be  confined  until  tried  by  a  court-martial,  or 
released  by  proper  authority. 

Art.  79.  No  officer  or  soldier  who  shall  be  put  in  arrest  shall 
continue  in  confinement  more  than  eight  days,  or  until  such 
time  as  a  court-martial  can  be  assembled. 

Art.  80.  No  officer  commanding  a  guard,  or  provost-mar- 
shal, shall  refuse  to  receive  or  keep  any  prisoner  committed  to 
his  charjre  bv  an  officer  belonccinc:  to  the  forces  of  the  United 


ARTICLES    OF    WAR.  353 

States  ;  provided  the  officer  coininitting  shall,  at  the  same  thne, 
deliver  an  account  in  writing,  signed  by  himself,  of  the  crime 
with  which  the  said  prisoner  is  charged. 

Akt.  81.  No  officer  commanding  a  guard,  or  provost-mar- 
shal, shall  presume  to  release  any  person  committed  to  his 
charge  without  proper  authority  for  so  doing,  nor  shall  he  suf- 
fer any  person  to  escape,  on  the  penalty  of  being  ])unished  for 
it  by  the  sentence  of  a  court-martial. 

Akt.  82.  Every  officer  or  provost-marshal,  to  whose  charge 
prisoners  shall  be  committed,  shall,  within  twenty-four  hours 
after  such  commitment,  or  as  soon  as  he  shall  be  relieved  from 
his  guard,  make  report  in  writing,  to  the  commanding  officer, 
of  their  names,  their  crimes,  and  the  names  of  the'*  officers  who 
committed  them,  on  the  penalty  of  being  punished  for  disobe- 
dience or  neglect,  at  the  discretion  of  a  court-martial. 

Akt.  83.  Any  commissioned  officer  convicted  before  a  gen- 
eral court-martial  of  conduct  unbecoming  an  officer  and  a  gen- 
tleman, shall  be  dismissed  the  service. 

Art.  8-i.  In  cases  where  a  court-martial  ma}'  think  it  proper 
to  sentence  a  commissioned  officer  to  be  suspended  from  com- 
mand, they  shall  have  power  also  to  suspend  his  pay  and  emol- 
uments for  the  same  time,  according  to  the  nature  and  heinous- 
ness  of  the  offence. 

Akt.  85.  In  all  cases  where  a  connnissioncd  officer  is  casli- 
iered  for  cowardice  or  fraud,  it  shall  be  added  in  the  sentence, 
that  the  crime,  name,  and  place  uf  abode,  and  ])uni>limeiit  of 
the  delinquent,  be  published  in  the  news])a])crs  in  and  alxjut 
the  camp,  and  of  the  particular  state  from  wliicli  the  oflcnder 
came,  or  where  he  usually  resides;  after  which  it  sliall  l)e 
deemed  scandalous  for  an  officer  to  associate  with  him. 

Akt.  86.  Tlie  commanding  officer  of  any  post  or  detachment, 
in  which  there  shall  not  be  a  number  of  officers  adequate  to 
form  a  general  court-martial,  sliall,  in  cases  which  require  the 
cognizance  of  such  a  court,  report  to  the  commanding  officer  of 
the  department,  who  shall  order  a  court  to  be  assembled  at  the 
nearest  post  or  department,  and  the  partv  accused,  with  neces- 
23 


354  APPENDIX. 

sary  witnesses,  to  be  transported  to  the  })lace  wliere  the  said 
court  shall  be  assembled. 

Art.  87.*  No  person  shall  be  sentenced  to  suffer  death  but 
by  the  concurrence  of  two-thirds  of  the  members  of  a  general 
court-martial,  nor  except  in  the  cases  herein  expressly  men- 
tioned ;  no7'  shall  more  than  ffty  lashes  he  inflicted  on  any 
offender,  at  the  discretion  of  a  court-inartial  /  and  no  officer, 
non-commissioned  officer,  soldier,  or  follower  of  the  army,  shall 
be  tried  a  second  time  for  the  same  offence. 

Art.  88.  No  person  shall  be  liable  to  be  tried  and  punished 
by  a  general  court-martial  for  any  offence  which  shall  apjiear 
to  have  been  committed  more  than  two  years  before  the  issuing 
of  the  order  for  such  trial,  unless  the  person,  by  reason  of  hav- 
ing absented  himself,  or  some  other  manifest  impediment,  shall 
not  have  been  amenable  to  justice  within  that  period. 

Art.  89.  Every  officer  authorized  to  order  a  general  court- 
martial  shall  have  power  to  pardon  or  mitigate  any  punishment 
ordered  by  such  court,  except  the  sentence  of  death,  or  of  cash- 
iering an  officer;  which,  in  the  cases  where  he  has  authority 
(by  article  05),  to  carry  them  into  execution,  he  may  suspend, 
until  the  pleasure  of  the  President  of  the  United  States  can  be 
known;  which  suspension,  together  with  copies  of  the  jn-oceed- 
ings  of  the  court-martial,  the  said  officer  shall  immediately 
transmit  to  the  President  for  his  determination.  And  the 
colonel  or  commanding  officer  of  the  regiment  or  garrison 
where  any  regimental  or  garrison  court-martial  shall  be  held, 
may  pardon  or  mitigate  any  punishment  ordered  by  such  court 
to  be  inflicted. 

xVrt.  00.  Every  judge  advocate,  or  person  officiating  as  such, 
at  any  general  court-martial,  shall  transmit,  with  as  much  ex- 
pedition as  the  opportunity  of  time  and  distance  of  place  can 
admit,  the  original   proceedings  and  sentence  of  such  court- 

*  So  much  of  these  rules  and  articles  as  authorizes  the  infliclion  of  corporeal 
punishment  by  stripes  or  lashes,  was  speciaUy  repealed  by  act  of  IGth  May,  1812. 
By  act  of  2d  March,  1 833,  the  repealing  act  was  repealed,  so  far  as  it  applied  to  the 
crime  of  desertion,  which,  of  course,  revived  the  punishment  by  lashes  for  that 
offence.     Repealed  by  act  of  August  5th,  1S61,  sec.  J. 


AETICLES    OF    WAE.  355 

niai'tial  to  the  secretary  of  war;  wliich  said  original  proceed- 
ings and  sentence  shall  be  carefnllv  kept  and  preserved  in  the 
office  of  said  secretary,  to  the  end  that  the  persons  entitled 
thereto  may  be  enabled,  upon  application  to  the  said  office,  to 
obtain  copies  thereof. 

The  party  tried  by  any  general  court-martial  shall,  npoii  de- 
mand thereof,  made  l)y  himself,  or  by  any  person  or  persons  in 
his  behalf,  be  entitled  to  a  copy  of  the  sentence  and  j^roceed- 
inffs  of  such  conrt-martial. 

Akt.  91.  In  cases  where  the  general,  or  commanding  officer 
may  order  a  conrt  of  inquiry  to  examine  into  the  nature  of  any 
transaction,  accusation,  or  imputation  against  any  officer  or 
soldier,  the  said  court  shall  consist  of  one  or  more  officers,  not 
exceeding  three,  and  a  judge  advocate,  or  other  suitable  ])erson, 
as  a  recorder,  to  reduce  the  ]>roceedings  and  evidence  to  writ- 
ing ;  all  of  whom  shall  be  sworn  to  the  faithful  performance  of 
their  duty.  This  court  shall  have  the  same  power  to  summon 
witnesses  as  a  court-martial,  and  to  examine  them  on  oath. 
But  they  shall  not  give  their  opinion  on  the  merits  of  the  case, 
excepting  they  shall  be  thereto  specially  required.  The  parties 
accused  shall  also  be  permitted  to  cross-examine  and  interrogate 
the  witnesses,  so  as  to  investigate  fully  the  circumstances  in  the 
question. 

Art.  92.  Tlie  proceedings  of  a  court  of  inquiry  must  be 
authenticated  by  the  signature  of  the  recorder  and  the  presi- 
dent, and  delivered  to  the  commanding  officer,  and  the  said 
proceedings  may  be  admitted  as  evidence  by  a  court-martial, 
in  cases  not  capital,  or  extending  to  the  dismission  of  an  officer, 
provided  that  the  circumstances  are  such  that  oral  testimony 
cannot  be  ol^tained.  But  as  courts  of  inquiry  may  be  pervert- 
ed to  dishonorable  purposes,  and  may  be  considered  as  engines 
of  destruction  to  military  merit,  in  the  hands  of  weak  and  envi- 
ous commandants,  they  are  hereby  ]in.liibite(l,  uiilt^'ss  directed  by 
the  President  of  the  United  States,  or  demanded  l)y  the  accused. 

Akt.  93.  Tlie  judge  advocate  or  recorder  shall  administer  to 
the  members  the  following  oath  : 


356  APPEXDIX. 

"  Yon  sliall  well  and  triilv  examine  and  inqnire,  according 
to  Yonr  evidence,  into  the  matter  now  before  jon,  without  par- 
tiality, favor,  affection,  prejudice,  or  hope  of  reward.  So  help 
you  God." 

After  which  the  president  shall  administer  to  the  judge  ad- 
vocate or  recorder  the  following  oath  : 

'•  You,  A.  B.,  do  swear  that  you  will,  according  to  your  best 
abilities,  accurately  and  impartially  record  the  proceedings  of 
the  court,  and  the  evidence  to  be  given  in  the  case  in  hearing. 
So  help  you  God." 

The  witnesses  shall  take  the  same  oath  as  witnesses  sworn 
before  a  court-martial. 

Art.  94.  When  any  commissioned  officer  shall  die  or  be 
killed  in  the  service  of  the  United  States,  the  major  of  the  regi- 
ment, or  the  officer  doing  the  major's  duty  in  his  absence,  or 
in  any  post  or  garrison,  the  second  officer  in  command,  or  the 
assistant  military  agent,  shall  immediately  secure  all  his  effects 
or  equipage,  then  in  camp  or  quarters,  and  shall  make  an  in- 
ventory thereof,  and  forthwith  transmit  the  same  to  the  office 
of  the  Department  of  War,  to  the  end  that  his  executors  or  ad- 
ministrators may  receive  the  same. 

Akt.  95.  When  any  non-commissioned  officer  or  soldier  shall 
die,  or  be  killed  in  the  service  of  the  United  States,  the  then 
commanding  officer  of  the  troop  or  company  shall,  in  the  J3res- 
ence  of  two  other  commissioned  officers,  take  an  account  of 
what  effects  he  died  possessed  of,  above  his  arms  and  accoutre- 
ments, and  transmit  the  same  to  the  office  of  the  Department 
of  War,  which  said  effects  are  to  be  accounted  for,  and  paid  to 
the  representatives  of  such  deceased  non-commissioned  officer 
or  soldier.  And  in  case  any  of  the  officers,  so  authorized  to 
take  care  of  the  effects  of  deceased  officers  and  soldiers,  should, 
before  they  have  accounted  to  their  representatives  for  the 
same,  have  occasion  to  leave  the  regiment  or  post,  by  prefer- 
ment or  otherwise,  they  shall,  before  they  be  permitted  to  quit 
the  same,  deposit  in  the  hands  of  the  commanding  officer,  or 
of  the  assistant  military  agent,  all  the  effects  of  such  deceased 


i 


ARTICLES    OF    WAR.  357 

non-commissioned  officers  and  soldiers,  in  order  that  tlie  same 
may  be  secured  for,  and  paid  to,  tlieir  respective  representatives. 

Art.  96.  All  officers,  conductors,  gunners,  matrosses,  drivers, 
or  other  persons  whatsoever,  receiving  pay  or  hire  in  the  serv- 
ice of  the  artillery,  or  corps  of  engineers  of  the  United  States, 
shall  be  governed  by  the  aforesaid  rules  and  articles,  and 
shall  be  subject  to  be  tried  by  courts-martial,  in  like  manner 
with  the  officers  and  soldiers  of  the  other  troops  in  the  service 
of  the  United  States. 

Art.  97.  The  officers  and  soldiers  of  any  troops,  whether 
militia  or  others,  being  mustered  and  in  pay  of  the  United 
States,  shall,  at  all  times  and  in  all  places,  when  joined,  or  act- 
ing in  conjunction  with  tlie  regular  forces  of  the  United  States, 
be  governed  by  these  rules  and  articles  of  war,  and-  shall  be 
subject  to  be  tried  by  courts-martial,  in  like  manner  with  the 
officers  and  soldiers  in  the  regular  forces ;  save  only  that  such 
courts-martial  shall  be  composed  entirely  of  militia  officers. 

Art.  98.  All  officers  serving  by  commission  from  the  author- 
ity of  any  particular  state,  shall,  on  all  detachments,  courts- 
martial,  or  other  duty,  wherein  they  may  be  employed  in  con- 
junction with  the  regular  forces  of  the  United  States,  take  rank 
next  after  all  officers  of  the  like  grade  in  said  regular  forces, 
notwithstanding  the  commissions  of  such  militia  or  state  offi- 
cers may  be  elder  than  the  commissions  of  the  officers  of  the 
regular  forces  of  the  United  States. 

Art.  99.  All  crimes  not  capital,  and  all  disorders  and  neg- 
lects which  officers  and  soldiers  may  be  guilty  of,  to  the  pre- 
judice of  good  order  and  military  discipline,  though  not  men- 
tioned in  the  foregoing  articles  of  war,  are  to  be  taken  cogni- 
zance of  by  a  general  or  regimental  court-martial,  according  to 
the  nature  and  degree  of  the  offi3nce,  and  be  punished  at  their 
discretion. 

Art.  100.  The  President  of  the  United  States  shall  have 
power  to  prescribe  the  uniform  of  the  army. 

Art.  101.  Tlie  foregoing  articles  are  to  be  read  and  published, 
once  in  every  six  mouths,  to  every  garrison,  regiment,  troop, 


358  APPEXDIX. 

or  company,  mustered,  or  to  be  mustered,  iu  the  service  of  the 
United  States,  and  are  to  be  duly  observed  and  obeyed  by  all 
officers  and  soldiers  who  are,  or  shall  be,  in  said  service. 

Sec.  2.  And  he  it  further  enacted^  Tliat  in  time  of  war,  all 
persons  not  citizens  of,  or  owing  allegiance  to,  the  United  States 
of  America,  who  shall  be  found  lurking  as  spies  in  or  about 
the  fortifications  or  encampments  of,  the  armies  of  the  United 
States,  or  any  of  them,  shall  suffer  death,  according  to  the  law 
and  usage  of  nations,  by  sentence  of  a  general  court-martial,* 

Sec.  3.  And  he  it  further  enacted^  That  the  rules  and  regula- 
tions by  which  the  armies  of  the  United  States  have  heretofore 
been  goyerned,  and  the  resolves  of  Congress  tbereunto  annexed, 
and  respecting  the  same,  shall  henceforth  be  void  and  of  no 
effect,  except  so  far  as  may  relate  to  any  transactions  under 
them  prior  to  the  promulgation  of  this  act,  at  the  several  posts 
and  garrisons  respectively,  occupied  by  any  part  of  the  army  of 
the  United  States.     [Appkoved,  April  10,  ISOC] 


EXTRACTS  FROM  ACTS  OF  COXGRESS. 

1.  "  If  any  non-commissioned  officer,  musician,  or  private 
shall  desert  the  service  of  the  United  States,  he  shall,  in  addition 
to  the  penalties  mentioned  in  the  rules  and  articles  of  war,  be 
liable  to  serve  for  and  during  such  a  period  as  shall,  with  the 
time  he  may  have  served  previous  to  his  desertion,  amount  to 
the  full  term  of  his  enlistment ;  and  such  soldier  shall  and  may 
be  tried  by  a  court-martial,  and  punished,  although  the  term 
of  his  enlistment  may  have  elapsed  previous  to  his  being  appre- 
hended or  tried."— ^6'^  KSth  March,  1802,  sec.  18. 

2.  "  No  officer  or  soldier  in  the  army  of  the  United  States 
shall  be  subject  to  the  punishment  of  death  for  desertion  in 
time  of  peace." — Act  29th  May,  1830. 

3.  "Wlienever  a  general  officer  connnanding  an  army,  or  a 

*  Modified  by  act  of  February  l.'Uli,  1862,  section  4th. 


EXTRACTS    FROM    ACTS    OF    CONGRESS.  359 

colonel  coiniuanding  a  separate  departinent,  shall  bo  the  aeeuser 
or  prosecutor  of  any  officer  in  the  army  of  the  United  States 
under  his  command,  the  general  court-martial  for  the  trial  of 
such  officer  shall  be  appointed  by  the  President  of  the  United 
States." 

"The  proceedings  and  sentence  of  the  said  court  shall  be 
sent  directly  to  the  secretary  of  war,  to  be  by  him  laid  betbre 
the  President  for  his  confirmation  or  approval,  or  orders  in 
the  case." 

"  So  nnich  of  the  sixty-fifth  arti(;le  of  the  first  section  of 'An 
act  for  establishing  rules  and  articles  for  the  government  of  the 
armies  of  the  United  States,'  passed  on  the  tenth  of  April, 
eighteen  hundred  and  six,  as  is  repugnant  hereto,  shall  be,  and 
the  same  is  hereby  repealed." — Act  29th  May,  1S30,  sec.  1,  2, 
and  3. 

4.  "  That  all  officers  and  other  persons,  charged  by  this  act,  or 
any  other  act,  with  the  safe-keeping,  transfer,  and  disbursement 
of  the  pnl)lic  moneys,  other  than  those  connected  with  the  post- 
office  department,  are  hereby  required  to  keep  an  accurate  entry 
of  each  sum  received,  and  of  each  payment  or  transfer  ;  and 
that  if  any  one  of  the  said  officers,  or  of  those  connected  with 
the  post-office  department,  shall  convert  to  his  own  use,  in  any 
way  whatever,  or  shall  use,  by  way  of  investment  in  any  kind 
of  property  or  merchandise,  or  shall  loan,  with  or  without  in- 
terest, or  shall  deposit  in  any  bank,  or  shall  exchange  for  other 
funds,  except  as  allowed  by  this  act,  any  portion  of  the  public 
moneys  intrusted  to  him  for  safe-keeping,  disbursement,  trans- 
fer, or  for  any  other  purpose,  eveiy  such  act  shall  be  deemed 
aiid  adjudged  to  be  an  embezzlement  of  so  much  of  the  said 
moneys  as  shall  be  thus  taken,  converted,  invested,  used,  loaned, 
deposited,  or  exchanged,  which  is  hereby  declared  to  be  a  fel- 
ony ;  and  any  failure  to  pay  over  or  to  produce  the  public  moneys 
intrusted  to  such  person,  shall  be  held  and  taken  to  be  ijrima 
facie  evidence  of  such  embezzlement ;  and  if  any  officer  charged 
with  the  disbursements  of  public  moneys  shall  accept,  or  re- 
ceive, or  transmit  to  the  treasury  department  to  be  allowed  in 


360  APPENDIX. 

liis  favor,  any  receipt  or  vouelier  from  a  creditor  of  the  United 
States,  withont  having  paid  to  said  creditor,  in  such  funds  as 
the  said  officer  may  liave  received  for  disbursement,  or  such 
other  funds  as  he  may  be  authorized  by  this  act  to  take  in  ex- 
change, the  full  amount  specified  in  such  receijjt  or  voucher, 
every  such  act  shall  be  deemed  to  be  a  conversion  by  such  officer 
to  his  own  use  of  the  amount  specified  in  such  receipt  or  voucher ; 
and  any  officer  or  agent  of  the  United  States,  and  all  })ersons 
advising  or  participating  in  such  act,  being  convicted  thereof, 
before  any  court  of  the  United  States  of  competent  jurisdiction, 
shall  be  sentenced  to  imprisonment  for  a  term  of  not  less  than 
six  months,  nor  more  than  ten  years,  and  to  a  fine  equal  to  the 
amount  of  the  money  embezzled.  And,  upon  the  trial  of  any 
indictment  against  any  person  for  embezzling  public  money  un- 
der the  provisions  of  this  act,  it  shall  be  sufficient  evidence,  for 
the  purpose  of  showing  a  balance  against  such  person,  to  pro- 
duce a  transcript  from  the  books  and  proceedings  of  the  treas- 
ury, as  required  in  civil  cases,  under  the  provision  of  the  act, 
entitled,  '  An  Act  to  i:)rovide  more  effectually  for  the  Settlement 
of  Accounts  between  the  United  States  and  Receivers  of  Public 
Money,'  approved  March  third,  one  thousand  seven  hundred 
and  ninety-seven ;  and  the  provisions  of  this  act  shall  be  so  con- 
strued as  to  apply  to  all  persons  charged  with  the  safe-keeping, 
transfer,  or  disbursement,  of  the  public  money,  whether  such 
persons  be  indicted  as  receivers  or  depositaries  of  the  same ; 
and  the  refusal  of  such  jierson,  whether  in  ov  out  of  office,  to 
pa}'  any  draft,  order,  or  warrant,  which  may  be  drawn  upon 
him  by  the  proper  officer  of  the  treasury  department,  for  any 
public  money  in  his  hands  belonging  to  the  United  States,  no 
nuxtter  in  what  capacity  the  same  may  have  been  received  or 
may  be  held,  or  to  transfer  or  disburse  any  such  money  promptly, 
upon  the  legal  requirement  of  any  authorized  officer  of  the 
United  States,  shall  be  deemed  and  taken,  upon  the  trial  of  any 
indictment  against  such  person  for  embezzlement,  as  /)/'/y;i« 
facie  evidence  of  such  embezzlement." — Act,  August  6th,  1846, 
sec  16. 


i 


EXTRACTS    FROM    ACTS    OF    CONGRESS.  301 

5.  "  That  every  officer,  iioii-conimissioncd  officer,  or  private 
e< '  tlie  militia,  who  shall  fail  to  ohey  the  orders  of  the  President 
of  the  United  States  in  any  of  the  cases  before  recited,  shall 
forfeit  a  sum  not  exceeding  one  year's  pay,  and  not  less  than 
one  month's  pay,  to  be  determined  and  adjudged  by  a  court- 
martial  ;  and  such  officer  shall  be  liable  to  be  cashiered  by  a  sen- 
tence of  court-martial,  and  be  incapacitated  from  holding-  a  com- 
mission in  the  militia,  for  a  term  not  exceeding  twelve  months, 
at  the  discretion  of  the  court ;  and  such  non-commissioned  of- 
ficer and  private  shall  be  liable  to  imprisonment  b}^  a  like  sen- 
tence, on  failure  of  payment  of  the  fines  adjudged  against  them 
for  one  calendar  montli,  for  every  twenty-five  dollars  of  such 
fine." 

"That  courts-martial  for  the  trial  of  militia  shall  be  com- 
posed of  militia  officers  only." 

"  That  all  fines  to  be  assessed  as  aforesaid  shall  be  certified 
by  the  presiding  officer  of  the  court-martial,  and  shall  be  col- 
lected and  paid  over  according  to  the  provisions  and  in  the  man- 
ner prescribed  by  the  seventh  and  eighth  sections  of  the  act  of 
February  twenty-eight,  seventeen  hundred  and  ninety-five,  to 
which  this  is  an  amendment." — Act,  July  %ith,  1861,  sec.  4-,  5, 
and  6. 

6,  "  That  any  commissioned  officer  of  the  army,  or  of  the 
marine  corps,  who  shall  have  served  as  such  for  forty  consecu- 
tive years,  may,  upon  his  application  to  the  President  of  the 
United  States,  be  placed  upon  the  list  of  retired  officers,  with 
the  pay  and  emoluments  allowed  by  this  act." 

"Tliat,  if  any  commissioned  officer  of  the  army,  or  of  the 
marine  corps,  shall  have  become,  or  shall  hereafter  become,  in- 
capable of  performing  the  duties  of  his  office,  he  shall  be  placed 
upon  the  retired  list  and  withdrawn  from  active  service  and  com- 
mand, and  from  the  line  of  promotion,  with  the  following  pay 
and  emoluments,  *  *  *  .  ^nd  the  next  officer  in 
rank  shall  be  promoted  to  the  place  of  the  retired  officer,  ac- 
cording to  the  established  rules  of  the  service.  '"  *  * 
That  there  shall  not  be  on  the  retired  list  at  anv  one  time  more 


362  APPENDIX. 

than  seven  per  centum  of  the  wliole  number  of  officers  of  t\w, 
army  as  fixed  by  law." 

"  That,  in  order  to  carry  out  tlie  provisions  of  this  act,  the 
secretary  of  war,  or  secretary  of  the  navy,  as  the  case  may 
be,  under  the  direction  and  approval  of  the  President  of  the 
United  States,  shall,  from  time  to  time,  as  occasion  may  require, 
assemble  a  board  of  not  more  than  nine  nor  less  than  five  com- 
missioned officers,  two-fifths  of  whom  shall  be  of  the  medical 
staff ;  the  board,  except  those  taken  from  the  medical  staff,  to 
be  composed,  as  far  as  may  be,  of  his  seniors  in  rank,  to  deter- 
mine the  facts  as  to  the  nature  and  occasion  of  the  disability 
of  such  officers  as  appear  disabled  to  perform  such  military 
service,  such  board  being  hereby  invested  w^itli  the  powers  of  a 
court  of  inquiry  and  court-martial,  and  their  decision  shall  be 
subject  to  like  revision  as  that  of  such  courts  by  the  President 
of  the  United  States.  Tlie  board,  whenever  it  finds  an  officer 
incapacitated  for  active  service,  will  report  whether,  in  its  judg- 
ment, the  said  incapacity  result  from  long  and  faithful  service, 
from  wounds  or  injury  received  in  the  line  of  duty,  from  sick- 
ness or  exposure  therein,  or  from  any  other  incident  of  service. 
If  so,  and  the  President  approve  such  judgment,  the  disabled 
officer  shall  thereupon  be  placed  upon  the  list  of  retired  offi- 
cers, according  to  the  provisions  of  this  act.  If  otherwise,  and 
if  the  President  concur  in  opinion  with  the  board,  the  officer 
shall  be  retired  as  above,  either  with  his  pay  proper  alone  or 
with  his  service  rations  alone,  at  the  discretion  of  the  President, 
or  he  shall  be  wholly  retired  from  the  service,  with  one  year's 
pay  and  allowances ;  and  in  this  last  case  his  name  shall  be 
thenceforward  omitted  from  the  army  register,  or  navy  register, 
as  the  case  may  be  :  Provided  always^  That  the  members  of 
the  board  shall  in  every  case  be  sworn  to  an  honest  and  imi)ar- 
tial  discharge  of  tlieir  duties,  and  that  no  officer  of  the  array 
shall  be  retired  either  partially  or  wholly  from  the  service 
without  having  had  a  fair  and  full  hearing  before  the  board,  if, 
upon  due  summons,  he  shall  demand  it." 

"That  the  officers  partially  retired  shall  be  entitled  to  wear  the 


EXTEACTS    FROM    ACTS    OF    CONGRESS.  363 

uiiiforin  of  their  respective  grades,  shall  continue  to  be  borne 
upon  tlu;  army  register  or  navy  register,  as  the  case  may  be, 
and  shall  be  subject  to  the  rules  and  articles  of  war,  and  to 
trial  by  general  court-martial  for  any  breach  of  the  said  articles." 
—Act,  August  3d,  1861,  sec.  15,  16,  17,  and  18. 

7.  "That  any  commissioned  officer  of  the  army,  navy,  or 
marine  corps,  who,  having  tendered  his  resignation,  shall,  prior 
to  due  notice  of  the  acceptance  of  the  same  by  the  proper 
authority,  and,  without  leave,  quit  his  post  or  proper  duties 
with  the  intent  to  remain  permanently  absent  therefrom,  shall 
be  registered  as  a  deserter,  and  i^unished  as  such." 

"  That  flogging  as  a  punishment  in  the  army  is  hereby  abol- 
ished."— Act,  August  5t/i,  1861,  sec.  2  and  3. 

8.  "That,  in  time  of  war  the  commander  of  a  division  or 
separate  brigade  may  appoint  general  courts-martial,  and  con- 
firm, execute,  pardon,  and  mitigate  their  sentences,  as  allowed 
and  restrained  in  the  sixty -fifth  and  eighty-ninth  articles  of  war 
to  commanders  of  armies  and  departments :  Provided,  That 
sentences  of  such  courts,  extending  to  loss  of  life,  or  dismission 
of  a  commissioned  officer,  shall  require  the  confirmation  of  the 
general  commanding  the  army  in  the  field  to  which  the  division 
or  brigade  belongs  :  And  provided  further,  That  when  the  di- 
vision or  brigade  commander  shall  be  the  accuser  or  prosecutor, 
the  court  shall  be  appointed  by  the  next  higher  commander." — 
Act,  Becemher  2ith,  1861. 

9.  "  That  the  fifth  section  of  the  act  of  twelfth  June,  eighteen 
hundred  and  fifty-eight,  giving  sutlers  a  lien  u})()n  the  soldiers' 
pay,  be,  and  the  same  is  hereby,  re])ealed :  and  all  regulations 
giving  sutlers  rights  and  privileges  beytjnd  the  Hules  and  xVrti- 
cles  of  War  be,  and  the  same  are  hereby,  abrogated." — Act, 
December  2^th,  1861,  sec.  3.       * 

10.  "That  the  second  section  of  the  act  of  the  tenth  of  April, 
eighteen  hundred  and  six,  shall  be,  and  the  same  is  hereby,  so 
amended  as  to  read  as  follows : 

"Sec.  2.  Aiid  be  it  further  enacted,H\\i\i,  in  time  of  war  or 
rebellion  against  the  supreme  authority  of  the  United  States, 


364  APPEKDIX. 

all  persons  wlio  shall  be  found  Inrking  as  spies,  or  acting  as  such, 
in  or  about  the  fortifications,  encampments,  posts,  quarters,  or 
head-quarters  of  the  armies  of  the  United  States,  or  any  of  them, 
within  any  part  of  the  United  States  which  has  been  or  may  be 
declared  to  be  in  a  state  of  insurrection,  by  proclamation  of  the 
President  of  the  United  States,  shall  suffer  death  by  sentence 
of  a  general  court-martial." 

"  That  the  fifty -fifth  article  of  the  first  section  of  act  of  tenth 
April,  eighteen  hundred  and  six,  chapter  twenty,  be,  and  the 
same  is  hereby,  so  amended  as  to  read  as  follows  : 

'■'■Article  ffty-five.  "Whoever,  belonging  to  the  armies  of  the 
United  States  in  foreign  parts,  or  at  any  place  within  the 
United  States,  or  their  Territories,  during  rebellion  against  the 
supreme  authority  of  the  United  States,  shall  force  a  safeguard, 
shall  suffer  death." — Act,  February  13^A,  1862,  sec.  4  and  5. 

11.  "All  oflicers  or  persons  in  the  military  or  naval  service 
of  the  United  States  are  prohibited  from  employing  any  of  the 
forces  under  their  respective  commands  for  the  purpose  of  re- 
turning fugitives  from  service  or  labor,  who  may  have  escaped 
from  any  persons  to  whom  such  service  or  labor  is  claimed  to 
be  diie,  and  any  ofiicer  who  shall  be  found  guilty  by  a  court- 
martial  of  violating  this  article  shall  be  dismissed   from  the 


INDEX. 


Abatement,  plea  in,  may  bo  made  by  a 
prisoner,  107. 

Absence  of  members  from  a  court-mar- 
tial, 8-1 ;  of  tlie  judge  advocate,  86. 

Accomplices,  evidence  of,  has  always 
been  admitted,  242 ;  testify  under  an 
implied  promise  of  pardon.  242 ;  in 
what  mannei*  and  for  what  purpose 
admitteil  to  testify,  243 ;  testimony  of, 
ought  to  receive  confirmation,  244 ; 
when  admitted  to  give  evidence,  must 
make  a  full  confession,  313. 

Accusations,  frivolous  and  vexatious,  134. 

Accuser,  may  remain  in  court  under  cer- 
tain circumstances,  GG;  a  competent 
witness,  235. 

Acquittal,  a  former,  a,  valid  plea  in  bar  of 
trial,  97 ;  what  constitutes,  98 ;  deter- 
mined by  a  majority  of  votes,  128;  fol- 
lows where  votes  are  equally  divided, 
129;  manner  in  which  expressed,  133. 

Actions,  injurious,  malice  a  presumption 
of  law  from,  282. 

Acts  of  Congress,  extracts  from,  358. 

Address  of  prisoner  in  defence,  IIG  ,  may 
be  read  by  his  counsel,  117. 

Adjournment  of  courts-martial,  82,  84. 

Admissibility  of  evidence,  court  must 
decide  on,  225. 

Adverse  party,  when  instruments  arc  in 
possession  of,  275;  notice  to,  to  pro- 
duce instruments,  27G,  277. 

Adviser  of  the  court,  the  judge  advocate 
is,  198. 

AfiBrmative,  test  as  to  whicli  partv  is  in 
the,  292. 

Aggregate  opinion  of  a  court-martial  may 
be  claimed,  G6. 

Alias,  a  prisoner  may  be  tried  under  an,  5G. 

Alibi,  when  a  prisoner  may  prove  an,  300. 

Amiais  curia  in  courts-martial,  G5. 

Answer,  in  what  cases  a  witness  may 
refuse,  310-314. 

Appeal,  right  of,  given  to  all  officers  and 
soldiers,  170.  17G. 

Appeal  from  a  regimental  to  a  general 


court-martial,  159,  177;  order  of  pro- 
ceedings on,  178;  when  vexatious  and 
groundless,  178. 
Appointment  of  a  judge  advocate,  1 92. 
Armies,  persons  serving  with,  subject  to 

the  articles  of  war,  29. 
Arraignment  of  a  prisoner,  form  of,  94. 
Arraj',  challenges  to  the,  68. 
Arrest  and  confinement,  46-51. 
Arrest,  breach  of,  cashiering  the  penalty 
for,  47  ;  officers  may  be  ordered  in,  by 
inferiors   in  certain  cases,    48,  49 ;    a 
former,  not  a  valid  plea  in  bar  of  trial, 
100;  parties  before  courts  of  inquiry 
not  in,    182 ;    parties    before   retiring 
boards  not  in,  189. 
Article  of  war  relating  to 

Absence  without  leave,  341,  art.  21; 

345,  arts.  41,  42. 
Allegiance,  oath  of,  338.  art.  10. 
Ammunition,  wasting,  344,  art.  37. 
Arrest,  352,  arts.  77-79. 
Attending  divine  service,  336,  art.  2. 
Certificates  of  absence  of  officers  and 
soldiers,  339,  art.  13;  officers  .sign- 
ing false,  339,  art.  14. 
Challenges,  351,  art.  71. 
Challenge  to  fight  a  duel,  sending, 
341,  arts.  25,  26 ;   upbraiding  for 
refusing,  342,  art.  28. 
Chaplains,  absence  of,  337,  art.  4. 
Citizens,  ofTeuces  against,  343,  art  33. 
Compelling  a  commander  to  surren- 
der, 348,  art  59. 
Conduct  imbecoming  an  officer  and 

a  gentleman,  353,  art.  83. 
Confinement  of  offenders,  352,  353, 

arts.  77-82. 
Correspondence  with  the  enemy,  348, 

art.  57. 
Courts-martial,  appointment  of,  349. 

arts.  65,  66;  353,  art.  26. 
Courts  of  inquiry,  355,  356,  arts.  91- 

93. 
Cowardice,  officers  cashiered  for,  353, 
art.  85. 


366 


INDEX. 


Article  of  war  relatinpr  to 

Crimes  and  ofl'euces  not  named  in 
tiie  articles  of  war,  857,  art.  99. 

Death  penalty,  354,  art.  87. 

Deposition  of  witnesses  not  in  the 
army,  352,  art.  74. 

Desertion,  340,  art.  20  ;  advising  or 
persuading  to,  341,  art.  23. 

Discharge  of  non-commissioned  offi- 
cers and  soldiers,  338,  art.  11. 

Disobedience  of  superior  officers, 
338,  art.  9. 

Disorderly  conduct  in  presence  of 
courts-martial,  352,  art.  76. 

Disrespect  of  constituted  authorities, 
337,  art.  5 ;  of  commanding  offi- 
cers, 337,  art.  6. 

Drunkenness  on  duty,  346,  art.  45. 

Effects  of  deceased  otficers  and  sol- 
diers. 356,  arts.  94,  95. 

Embezzlement,  345,  art.  39. 

Engineers,  349,  art.  63. 

False  alarms,  346,  art.  49. 

False  certificates  of  absence,  339, 
art.  14. 

False  muster,  339,  art.  15 ;  340,  art. 
17. 

False  returns.  340.  art.  18. 

Forcing  a  safeguard,  347,  art.  55. 

Fraud,  officers  cashiered  for,  353, 
art.  85. 

Furloughs,  339,  art.  12. 

Garrison  court-martial,  appointment 
of,   350,  art.  06;   jurisdiction  of, 

350,  art.  67. 

General  courts-martial,  number  of 
members  of  349,  art  64;  appoint- 
ment and  sentence  of,  349,  art.  6.'). 

Gestures,  reproachful  or  provoking, 
341,  art.  24.  ♦ 

Hiring  duty,  346,  arts.  47,  48. 

Judge  advocate,  duties  of,  350,  art. 
69. 

Jurisdiction  of  courts-martial,  as  to 
time,  354,  art.  88;  as  to  persons, 
357,  arts.' 96,  97. 

Lashe.s,  punishment  by,  354,  art.  87. 

Marines,  officers  of,  in  courts-mar- 
tial, 350,  art.  68. 

Military  stores,  spoiling  or  damag- 
ing, 344,  art.  36. 

Mihtia,  357,  arts.  97,  98. 

Muster-rolls,  339,  340,  arts.  13-17. 

Mutiny  or  sedition,  exciting,  337, 
art.  7  ;  not  aiding  to  suppress,  337, 
art.  8. 

Oath  administered  to  members  of 
regimental  and  garrison  courts- 1 
martial,  350,  art.  69 ;  to  witnesses, 

351,  art.  73;  to  members  of  courts  1 
of  inquiry,  356,  art.  93 ;  to  judge  , 


Article  of  war  relating  to 

advocates,  356,  art.  93;  371,  art. 

69. 
Oath  of  allegiance,  338,  art.  10. 
Order,  preservation  of  343,  art.  32. 
Orderly  conduct  in  quarters  and  on 

march,  347,  art.  54. 
Parade,  345,  art.  44. 
Pardoning  power,  354,  art.  89. 
Parole  or  watchword,  347,  art.  53. 
Prisoners,  confinement  of,  352,  353, 

arts.  77-82. 
Proceedings  of  courts-martial,   354, 

art.  90. 
Profane  swearing,  336,  art.  3. 
Publication  of  articles  of  war,  357, 

art.  101. 
Quelling  quarrels,  frays,  and  disor- 
ders, 342,  art.  27. 
Quitting  guard,  platoon,  or  division, 

346,  art.  50 ;  347,  art.  52. 
Rank  of  officers,  348,  arts.  61,  62. 
Re-enlisting  without  discharge,  341 , 

art.  22. 
Regimental  court-martial,    appoint- 
ment of,  349,  art.  06 ;  jurisdiction 

of,  350,  art.  67. 
Relieving  the  enemy,  348,  art.  56. 
Retiring  to  quarters,  345,  art.  43. 
■      Returns,  340,  arts.  18,  19. 
Running  away,  347,  art.  52. 
SeUing,    losing,  or    spoiling  horse, 

arms,  clothes,  &c.,  345,  art.  38. 
Sentence  of  death,  354,  art.  87. 
Sentinel  sleeping  on  his  post,  346, 

art.  46. 
Speeches,  reproachful  or  provoking, 

341,  art.  24. 
Spies,  358,  sec.  2. 
Standing    mute    before    a    general 

coui't-martial,  351,  art.  70. 
Stores,  captured,  348,  art.  58. 
Stores,    warlike,    accountabihty    of 

officers  for,  345,  art.  40. 
Strikinga  superior  officer,  337,  art.  9. 
Subscribing  articles    of   war,    336, 

art.  1. 
Suspension  of  officers  from  command, 

353,  art.  84. 
Sutlers,  342,  arts.  20-31;  348,  art. 

60. 
Trial  of  officers,  352,  art.  75. 
Uniform  of  the  ami}',  357,  art.  100. 
Violence  to  persons  bringing  provis- 
ions, 347.  art.  51. 
Toting  in  court-martial,  351,  art.  72. 
"Watchword  or  parole,  347,  art.  53. 
Wrongs,  344,  arts.  34,  35. 
Articles  of  war,  when  adopted  by  Con- 
gress. 8;  who  are  subject  to,   28.  29; 
punishments  specified  by,  for  various 


ESTDEX. 


367 


offences,  38 ;  remarks  on,  205-223 ; 
forms  of  charges  and  specitications 
under,  331-333. 

Artiliee,  confessions  obtained  by,  admis- 
sible in  evidence,  261. 

Assembly  of  general  courts-martial,  G7. 

Atheists,  not  competent  -witnesses,  231. 

Attendance,  compulsory,  of  witnesses, 
111. 

Attendance  of  members  of  courts-martial 
how  certified,  202. 

Attorney,  must  not  disclose  confidential 
comnxunications  of  his  client,  2-15. 

Autrefois  acquit  and  autrefois  convict, 
good  pleas  in  bar  of  trial,  97 ;  recent 
decisions  in  relation  to,  98-103. 

Averments,  descriptive,  proof  of,  295. 

Averments,  divisible,  29-i. 

Barnsman,  William,  case  of  155;  opin- 
ion of  Attorney-General  Wirt  in  rela- 
tion to  case  of,  155. 

Bar  of  trial,  pleas  in,  9G-10S. 

Belief  in  the  existence  of  a  God  necessa- 
ry in  a  witness,  231. 

Belief  of  \\ntnesses  as  to  identity  of  hand- 
writing, 271. 

Belief  of  witnesses  receivable  in  evidence, 
316. 

Berrien,  Attorney-General,  opinions  of,  as 
to  who  are  eligible  as  members  of 
courts-martial,  20,  21. 

Board  for  retiring  disabled  officers,  186  ; 

.,  authority  to  convene,  186;  by  whom 
assembled,  186 ;  jurisdiction  and  powers 
of,  187 ;  members  of,  liable  to  chal- 
lenge, 187  ;  members  of,  must  be  sworn, 
188;  not  bound  to  secrecy,  188;  have 
power  to  summon  witnesses,  188;  par- 
ties before,  may  be  allowed  counsel, 
188;  contempts  before,  how  punisha- 
ble, 188;  party  before,  not  in  arrest, 
189 ;  when  open  and  when  closed,  189  ; 
rights  of  party  before,  189;  decision 
of,  189;  revision  of  proceedings  of, 
190  ;  statute  of  limitation  does  not  ap- 
ply to,  190;  record  of,  191;  compe- 
tency of  evidence  in,  191 ;  form  of  or- 
der appointing,  325;  extract  from  act 
of  Congress  relating  to,  362. 

Breach  of  arrest,  cashiering  the  penalty 
for,  47. 

Burden  of  proof,  upon  wliom  lies  the, 
292,  293. 

Cadets  of  the  Military  Academy  subject 
to  what  regulations,  9 ;  when  eligible 
as  members  of  courts-martial,  21,  22  ; 
subject  to  what  jurisdiction  {note),  37. 

Camp  retainers,  subject  to  the  articles  of 
war,  29. 


Capital  punishment,  how  inflicted,  1 40 ; 
should  be  in  presence  of  all  the  troops, 
166;  by  shooting,  166;  by  hanging,  167. 

Cashiering  and  dismissal  as  punishments, 
43. 

Cashiering  the  penalty  for  breach  of  ar- 
rest, 47  ;  practice  of  the  British  service 
in  relation  to,  48. 

Causes  of  challenge,  73-76. 

Censure  of  witnesses  for  improper  con- 
duct, 134. 

Certainty  must  be  attained  as  to  party  ac- 
cused and  party  injured,  56 ;  of  time 
and  place  of  an  offence,  57. 

Certificate  of  judge  advocate,  form  of,  330. 

Challenge,  by  a  prisoner,  should  be  ad- 
mitted when  practicable,  6'J ;  prisoner 
must  state  his  cause  of,  68 ;  good  causes 
of,  73-76;  ancient  severe  rule  respect- 
ing, 74;  court  is  adjourned  when  re- 
duced by,  76;  regulations  respecting, 
89 ;  members  of  courts  of  inquiry  lia- 
ble to,  181 ;  members  of  retiring  boards 
liable  to,  187. 

Challenges  and  oaths,  68-81. 

Challenges  to  the  array,  68. 

Challenges  to  the  favor,  71. 

Challenge  to  fight  a  duel,  articles  of  war, 
relating  to,  208,  341,  342 ;  penalties  at- 
tached to  the  offence  of  sending,  209  ; 
notes  from  Colonel  S —  to  General  — 
containing,  209,  210;  general  order  in 
relation  to  sending,  210,  211. 

Chance,  an  excuse  from  guilt,  119. 

Chaplains  not  eligible  as  members  of 
courts-martial,  19,  20. 

Character,  evidence  as  to,  when  impor- 
tant, 285;  the  practice  of  courts-mar- 
tial to  admit  evidence  of,  286;  evidence 
of,  entitled  to  weight  only  in  cases  of 
doubt,  287  ;  in  what  cases  evidence  of, 
is  not  admitted,  287  ;  privilege  of  wit- 
ness to  protect  his  own,  313. 

Charge,  definition  of  a,  52  ;  how  to  bo 
preferred,  52  ;  specifications  to,  must  be 
explicit,  54 ;  must  be  read  before  tlio 
court,  89  ;  the  judge  advocate  ha«  the 
riglilj  to  make  correct,  90;  additional, 
may  be  preferred  before  arraignment, 
91 ;  a  correct  copy  of,  must  be  furnish- 
ed to  the  accused,  108 ;  custom  of  read- 
ing to  a  witness.  111;  can  be  no  con- 
viction of  an  offence  greater  t^an  is 
contained  in,  but  may  be  of  one  less, 
132,  133. 

Charges  and  specifications,  52-58 ;  judge 
advocate  must  be  fully  instructed  as  to, 
197;  forms  of  under  different  articles 
of  war,  331-333. 

Children,  how  far  competent  as  witness- 
es, 229. 


368 


r^DEX. 


Citizens,  offences  against,  articles  of  war 
relating  to,  211-213. 

Civil  court,  former  acquittal  or  conviction 
in,  not  a  good  plea  in  bar  of  trial  before  a 
court-martial,  100. 

Civilians,  how  far  wtbin  the  jurisdiction 
of  courts-martial.  31,  32. 

Clark,  Peter,  case  of,  92. 

Clergyman,  a  confession  made  to,  not 
privileged,  24G. 

Clifford,  Attorney-General,  opinion  of,  as 
to  the  power  of  the  President  to  dis- 
miss commissioned  officers,  161. 

Commands,  unlawful,  not  to  be  obeyed, 
120;  lawful,  disobedience  of,  208. 

Commissioned  officers,  courts-martial 
must  be  composed  of,  19;  may  be  dis- 
missed by  the  President  without  trial, 
161-165. 

Commissions,  military,  in  Mexico,  powers 
of,  defined,  12 ;  when  and  how  to  be 
constituted,  15  ;  powers  of,  16. 

Communications,  privileged,  244-248. 

Commutation  of  punishment,  in  the  power 
of  the  President,  154 ;  included  in  the 
power  to  mitigate,  155,  157. 

Competencj'  of  a  witness,  objections  to, 
when  and  how  to  be  made,  303. 

Competency  of  negroes  as  witnesses,  248- 
251. 

Complainant,  testimony  of,  suBBcient  for 
conviction  where  the  offence  is  -without 
witnesses,  267. 

Complaints  of  soldiers,  by  whom  to  be 
investigated,  40. 

Compulsory  attendance  of  witnesses.  111. 

Conduct,  as  presumptive  evidence,  282  ; 
mutinous,  how  taken  cognizance  of,  207 

Conduct  unbecoming  an  officer  and  a  gen- 
tleman, 220  ;  case  of  an  assistant  sur- 
geon charged  with,  221-223. 

Confe.-^sions  to  a  clergyman  or  priest  not 
privileged,  246;  are  received  in  evi- 
dence, 257;  degree  of  credit  to  be  at- 
tached to,  257  ;  classes  of,  258  ;  value 
of,  when  voluntarj-,  258,  259;  value  of, 
when  made  in  consequence  of  induce- 
ments held  out,  259-261 ;  admissible 
in  evidence  when  obtained  by  artifice, 
261;  facts  made  known  in,  when  not 
voluntary,  may  bo  received  in  certain 
cases,  262;  ancient  and  modern  usage 
respecting.  263  ;  of  servants  or  agents, 
how  far  evidence  against  a  principal, 
26.'i;  the  whole  of,  nuist  be  given  in 
evidence,  264;  when  void  in  point  of 
law,  265 ;  when  in  writing,  the  docu- 
ment must  be  produced.  265 ;  introduc- 
tion of,  in  evidence,  2  65. 

Confidence,  professional,  must  not  be  vio- 
lated, 244. 


Confinement  and  arrest,  46-51. 

Confinement  of  non-commissioned  ofiBcers 
and  soldiers,  49 ;  limitation  of,  50  ;  sick- 
ness of  a  soldier  during,  168. 

Confirmation  of  sentence,  151. 

Congress,  empowered  by  the  constitution 
to  regulate  land  and  naval  forces,  334, 
335. 

Conspiracy,  what  evidence  may  be  re- 
ceived to  estabhsh  the  existence  of, 
287-292. 

Conspirators,  the  act  of  one  the  act  of  all, 
289. 

Constitution  and  composition  of  courts- 
martial,  17. 

Constitution,  extracts  from  the,  334,  335. 

Contempts,  courts-martial  have  summary 
power  to  punish  for,  30 ;  before  courts 
of  inquiry,  how  punishable,  182  :  be- 
fore retiring  boards,  how  punishable, 
188. 

Contradiction  of  a  witness  by  the  party 
calling  him,  316. 

Control  of  court  over  judge  advocate,  200. 

Con-\action,  a  former,  a  valid  plea  in  bar 
of  trial.  97  ;  what  constitutes.  98;  de- 
termined by  a  majority  of  votes,  128, 
137  ;  one  witness  legally  sufficient  for, 
267. 

Copies  of  inscriptions  and  documents, 
when  received  as  evidence,  278. 

Corporeal,  what  punishments  are  called, 
168. 

Correspondence,  written,  as  a  proof  of 
handwriting,  272. 

Corresponding  with  the  enemy,  article  of 
war  relating  to,  220  ;  how  punishable, 
220. 

Counsel,  accused  to  have  the  benefit  of, 
65 ;  may  not  address  the  court,  65  ; 
may  be  objected  to  by  the  court,  65 ; 
when  introduced,  94 ;  may  be  allowed 
to  parties  before  courts  of  inquiry,  1 82  ; 
and  to  parties  before  retu-ing  boards, 
188. 

Counsel  for  prisoner,  the  judge  advocate 
is,  195. 

Courts-martial,  jurisdiction  of,  defined  by 
Congress,  7  ;  how  regulated,  8  ;  consti- 
tution and  composition  of,  17  ;  general, 
by  whom  appointed.  17,  18;  regiment- 
al and  garrison,  by  whom  appointed, 
18  ;  warrant  for  assembling,  by  whom 
issued,  18;  must  be  composed  of  com- 
missioned officers,  19;  wLou  to  be 
composed  of  militia  officers,  22 ;  num- 
ber of  members  of,  22-25  ;  presidents 
of,  25 ;  rank  of  members  of,  25  ;  juris- 
diction  of,  26,  31,  32,  37,  38,  299;  compe- 
tency and  completeness  ef  jurisdiction 
of,  27;  subjectto  what  limitation  of  time, 


INDEX. 


369 


27  ;  have  power  to  punish  for  con- 
tempts, 30 ;  how  far  civilians  are  with- 
in tlie  jurisdiction  of,  31,  32;  jurisdic- 
tion of,  after  expiration  of  term  of  ser- 
vice, 32 ;  powers  of,  to  intiict  fines  and 
imprisonment,  40 ;  oftences  within  the 
jurisdiction  of  41,  42;  cannot  bo  de- 
manded by  officers,  51;  parties  to  the 
trial  in,  51) ;  duties  of  the  president  of, 
59;  responsibility  of  members  of,  59; 
relation  of,  to  ordinary  courts,  60  ;  can- 
not control  the  nature  of  arrest  of  a 
prisoner,  62;  record  of  the  proceed- 
ings of,  how  kept,  66 ;  a  member  of 
may  be  challenged  when  a  material 
witness,  7  4 ;  is  adjourned  when  reduced 
by  challenges,  76;  form  of  oath  taken 
by  all  members  of,  77;  formation,  ad- 
journment and  dissolution  of,  82 ;  hours 
of  session  of,  S3 ;  time  and  place  of  as- 
sembling, 83 ;  its  presiding  officer  its 
only  organ,  83 ;  dclib.  rate  in  secret, 
84,  detail  of,  88;  illegal  acts  of  void, 
99;  finding  of  verdict  by,  125;  mem- 
bers of,  must  not  disclose  votes  given 
at  the  finding,  127;  may  animadvert  on 
the  conduct  of  witnesses,  134;  sen- 
tence by,  137 ;  punislunents  awarded  by, 
137;  regimental,  must  be  summoned 
on  complaint  of  a  soldier,  170,  172, 174, 
175;  control  of,  over  judge  advocate, 
200 ;  jurisdiction  of,  not  limited  by 
place,  299 ;  members  of  as  witnesses, 
302 ;  question  as  to  the  competency  of, 
to  original  evidence,  302;  forms  of  or- 
ders appointing,  323,  324;  mode  of  re- 
cording proceedings  of,  325-329;  in 
time  of  war,  extract  from  act  of  Con- 
gress relating  to,  363. 
Courts  of  Inquiry,  179;  authority  to  con- 
vene, 179 ;  number  of  members  of,  180; 
jurisdiction  of,  180 ;  rights  of  the  ac- 
cused in,  180;  duties  of  judge  advocate 
in,  181 ;  members  of,  may  be  challenged, 
181;  customary  to  keep  proceedings  of, 
secret,  181;  power  of,  to  summon  wit- 
nesses, 182;  parties  before,  allowed 
counsel/ 182;  hours  of  sitting  of,  182; 
are  closed  courts,  182 ;  contempts 
before,  how  punishable,  182;  accused 
not  in  arrest  when  attending,  182;  rec- 
ord of,  182;  statute  of  limitation  not 
applicable  to,  183-185;  General  Ma- 
comb on,  183;  De  Hart  on,  183;  not 
limited  in  Great  Britain,  185;  duties  of 
a  judge  advocate  before,  203 ;  object  of, 
203 ;  the  judge  advocate  is  the  legal 
adviser  of  203;  mode  of  proceeding 
in,  204 ;  proceedings  of,  privileged  in 
capital  cases,  248 ;  form  of  order  ap- 
pointing, 324. 
24 


Credit  of  witnesses,  modes  of  impeach- 
ing, 314,  315. 

Crime,  what  constitutes,  according  to 
Blackstono,  117;  infamous,  conviction 
of,  renders  a  witness  incompetent,  232  ; 
effect  of  conviction  of,  in  another  state, 
234;  parties  charged  with,  seldom 
competent  as  witnesses,  236;  an  indi- 
vidual charged  with,  may  be  rendered 
competent  as  a  witness  by  a  separate 
verdict,  237  ;  rights  guaranteed  by  the 
constitution  to  persons  accused  of,  334, 
335. 

Crittenden,  Attorney-General,  opinion  of 
on  the  pardoning  power  of  the  Presi- 
dent,  154. 

Cross-examination,  113;  uses  of,  306; 
leading  questions  in,  when  admitted 
and  when  not  admitted,  307,  308. 

Cusliing,  Attorney-General,  opinion  of  as 
to  the  eligibility  of  cadets  to  sit  on 
courts-martial,  21;  opinion  of,  in  re- 
lation to  absence  of  members  from 
court-martial,  85 ;  opinion  of  in  rela- 
tion to  remission  of  sentence,  160; 
opinion  of,  as  to  power  of  the  President 
to  dismiss  commissioned  officers,  162. 

Custody  of  prisoners  charged  with  crimes, 
49,  50. 

Custom  of  war,  the  lex  non  scripta  of  the 
army,  9. 

Deaf  and  dumb  persons,  how  far  compe- 
tent as  witnesses,  228. 

Deatli  by  hanging,  punishment  of  167. 

Death  l)y  shooting,  punishment  of,  166. 

Death  penalty,  requires  the  concurrence 
of  two-thirds  of  the  court,  128,  137. 

Death,  sentence  of,  when  prohibited  and 
when  permitted  by  the  articles  of  war, 
39. 

Debt,  verdict  of,  cannot  be  found  against 
a  soldier,  142. 

Declarations,  verbal  and  written,  how  far 
admissible  in  evidence,  252 ;  of  the 
dying,  253-256. 

Defect  of  religious  principle  in  a  witness, 
230. 

Defect  of  understanding  makes  a  witness 
incompetent,  227. 

Defence,  how  entered  upon,  1 15 ;  prisoner 
may  request  time  to  prepare  for,  L16; 
reply  of  judge  advocate  to,  122. 

Do  Hart,  on  courts  of  inquiry,  183. 

Delay  of  trial,  application  for,  87. 

Deliberations  of  courts-martial  are  in  se- 
cret, 84  ;  how  conducted  at  the  finding, 
125 ;  remarks  of  Mr.  Tyler  upon,  at  the 
finding,  126. 

Deposition  of  witnesses  who  are  civilians 
may  be  taken,  111. 


370 


INDEX. 


Descriptive  averments,  proof  of,  295. 

Desertion,  how  punished,  39 ;  punishable 
after  expiration  of  term  of  service,  36  ; 
case  of,  from  the  British  army  in  Spain, 
121 ;  extracts  from  acts  of  Congress  in 
relation  to,  358. 

Detail  of  courts-martial,  88. 

Devlin,  Lieutenant,  case  of,  158;  opinion 
of  the  attorney-general  on  the  case  of, 
158. 

Direct  evidence,  definition  of,  224;  weight 
of,  compared  with  that  of  presumptive 
evidence,  281. 

Disabled  officers,  boards  for  retiring,  186- 
189. 

Discharges  from  service,  how  only  to  be 
given,  163. 

Dismissal  and  cashiering  as  punishments, 
43. 

Disobedience  of  superior  officers,  208. 

Dissolution  of  courts-martial,  82. 

Distinctive  jurisdiction,  37. 

Divisible  averments,  294. 

Documents,  private,  must  be  produced 
when  oflered  as  evidence,  268,  269 ; 
when  presumed  to  have  been  destroyed, 
278,  279;  evidence  receivable  of  the 
destruction  of,  279. 

Dress  of  officers  retired  from  service, 
190. 

Drumming  out,  sentence  of,  how  execut- 
ed, 168. 

Drunkenness  aggravates  an  offence,  118. 

Drunkenness  on  duty,  article  of  war  in 
relation  to,  217;  cases  of  officers  ac- 
cused of,  217  ;  general  orders  in  rela- 
tion to,  217-220. 

Duel,  challenges  to  fight,  208,  211. 

Duties  of  a  judge  advocate,  198,202,  203. 

Dying  declarations,  how  far  admissible 
in  evidence,  253-256;  the  court  must 
decide  on  the  admissibility  of,  254;  are 
open  to  direct  contradiction,  255. 

Embezzlement  of  money,  pimishments  at- 
tached to  the  oflonce  of,  214;  case  of 
Captain  T.  J.,  accused  of,  214;  general 
order  relating  to  the  case  of  Captain  T. 
J.  acquitted  of,  by  court-martial,  214- 
217  ;  extracts  from  act  of  Congress  re- 
lating to,  359,  360. 

Enem)',  corresponding  with,  how  punish- 
able, 220. 

Erskine,  Lord,  case  of  a  mutineer  nar- 
rated by,  237. 

Evidence,  persons  who  give,  to  be  ex- 
amined on  oath,  or  affirmation,  SO ;  how 
to  be  recordccl,  110;  a  witness  has  a 
right  to  explain,  113;  record  of  his  own 
maybe  read  over  to  a  witness,  114; 
close  of  prosecution  precludes  addition- 


al, 115;  to  be  discussed  in  free  con- 
versation at  the  finding,  125;  compe- 
tent, before  retiring  boards,  191 ;  du- 
ties of  judge  advocate  m  relation  to, 
200;  definition  of,  224,  various  kinds 
and  degrees  of,  224,  225'  admissibility 
of,  225;  cases  in  which  a  witness  is 
incompetent  to  give,  226 ;  of  deaf  and 
dumb  persons  and  of  lunatics  and  mo- 
nomaniacs, 228;  of  chOdren,  229;  of 
atheists  and  Jews,  231;  of  husband 
and  wife,  239-241 ;  of  accomplices. 
242-244;  of  negroes,  248-251;  hear- 
say, 251,  256;  of  verbal  and  written 
declarations,  252 ;  of  dying  declara- 
tions, 253-256;  of  confessions,  257- 
265^  exclusion  of  secondary,  266 ;  of 
complainant,  267  ;  primary,  268-27  1 ; 
secondary,  275-279;  presumptive,  279- 
300. 

Examination  in  chief,  113,  305 ;  how  far 
leading  questions  are  allowed  on,  305, 
306. 

Examination  of  witnesses,  109;  300-306. 

Examined  copies  of  records  and  pubhc 
books  good  as  evidence,  268. 

Exclusion  of  secondary  evidence,  266. 

Execution  of  martial  law,  14. 

Execution  of  sentence,  1G6-169. 

Experts,  opinions  of,  are  evidence,  318; 
remarkable  instance  of  error  in  the 
answers  of,  318. 

Expiration  of  term  of  service,  jurisdiction 
of  courts-martial  after,  32. 

Eyre,  C.  B.,  on  dying  declarations  as  evi- 
dence, 253. 

Favor,  challenges  to  the,  7 1. 

Fellows,  Dr ,  case  of,  248. 

Final  action  on  the  proceedings  of  a  court- 
martial,  159. 

Finding,  125-136 ;  votes  on,  how  sub- 
mitted to  the  court,  136;  becomes  the 
decision  of  the  court,  136;  sentence  of 
the  court  must  be  in  strict  accordance 
with,  139;  form  of,  329. 

Fines,  powers  of  courts-martial  to  inflict, 
40,  41. 

Flight,  legal  presumption  from  283. 

Flogging  in  the  army,  when  abolished, 
363. 

Forcing  a  safeguard,  extract  from  act  of 
Congress  relating  to,  364. 

Formation  of  courts-martial,  82. 

Former  trial,  testimonj'  given  on,  how 
received,  256. 

Form  of  arraignment  of  a  prisoner,  94. 

Form  of  finding  of  courts-martial,  329. 

Form  of  oath  taken  by  members  of 
courts-martial,  77  ;  by  the  judge  advo- 
cate, 79;  by  a  witness,  80. 


rNDEX. 


371 


Form  of  plea,  no  special,  required  liy  a  | 

court-martial,  109. 
Forms  of  oniers,  32:5-."5;50 
Frivolous  and  vexatious  accusations,  184. 
Frye,  Lieutenant,  case  of,  illegally  i^in- 

victed,  5i). 
Fugitives  from  service  or  labor,  extract 

from  act  of  Congress  relating  to,  364. 

Garrison  courts-martial,  appointed  by 
whom,  IS;  liow  constituted,  24;  juris- 
diction of,  37  ;  members  of,  how  sworn, 
93 ;  record  of  proceedings  of,  202  ;  form 
of  order  appointing,  324. 

Gassawa}',  Lieutenant,  case  of,  100. 

General  courts-martial,  who  have  power 
to  appoint,  17, 13;  number  of  members 
of,  22 ;  question  raised  respecting  legal- 
ity of,  witli  less  than  thirteen  members, 
23 ;  when  supernumerary  officers  may 
be  appointed  on,  24;  jurisdiction  of,  31, 
37,  38;  have  exclusive  cognizance  of 
what  olfences,  41 ;  order  of  assembly  of, 
67;  record  of,  nuist  be  carefully  pre- 
served, 1 G 1 ;  record  of  proceedings  of, 
202 ;  copy  of  proceedings  of  must  be 
sent  to  the  War  Department,  202 ;  form 
of  order  appointing,  323 ;  form  of  order 
confirming  or  disapproving  proceedings 
of,  329. 

General  regulations  of  the  army,  by  whom 
prepared,  8 ;  have  legal  effect,  9 ;  gov- 
ern the  cadets  of  the  Military  Acade- 
my, 9. 

Guilt,  what  constitute  excuses  from,  117- 
121. 

Guilty,  pleading,  closes  prosecution,  95. 

Guthrie,  Midshipman,  case  of,  92. 

Hall,  Captain,  case  of,  149;  opinion  of 
Attorney-General  Wirt  on,  149. 

Handwriting,  proof  of,  2G9-274. 

Hanging,  capital  punishment  by,  167. 

Hearsay  evidence  not  receivable,  251; 
hable  to  be  fallacious,  251;  exception 
to  tiie  rule  of,  25G. 

Hooe,  Lieutenant,  case  of  248. 

Hours  of  session  of  a  court-martial,  83 ; 
of  courts  of  inquiry,  182. 

Howe,  Captain,  ease  of,  100,  104. 

Husband  and  wife,  cannot  be  witnesses 
for  or  against  each  other,  239;  evi- 
dence of,  receivable  in  collateral  pro- 
ceedings, 240 ;  may  testify  against  each 
other  as  to  personal  injuries,  241. 

Identity  of  a  prisoner  must  be  ascertain- 
ed. 56 ;  averments  as  to,  297. 
Idiocy,  total,  excuses  from  guilt,  118. 
Idiots,  incompetent  as  witnesses,  227 
Ignorance,  excuses  from  guilt,  119. 


Illegal  courts-martial,  acts  of,  void.  99. 

Illness  of  prisoner  or  members  of  a  court- 
martial  may  be  cause  of  adjournment, 
82. 

Illness  of  witness,  110. 

Immaterial  averments,  considered  as  sur- 
plusage, 297. 

Impeaching  the  credit  of  witnesses,  314. 

Imprisonment,  powers  of  courts-martial 
to  punisli  by,  40,  41 ;  sicl<ness  of  a 
soldier  during,  168;  place  of,  not  named 
in  sentence  of  court-martial,  169;  time 
of,  1G9. 

Incidents  of  the  trial  by  court-martial, 
88-124. 

Incompetency  of  witnesses,  226-235; 
from  defect  of  religious  principle,  230 ; 
by  reason  of  interest,  234. 

Indian  sentenced  for  murder,  case  of,  154. 

Indirect  evidence,  definition  of,  225. 

Infamy,  as  a  cause  of  incompetency  m  a 
witness,  232. 

Inferiors,  protection  to,  170. 

Innocence,  presumed  b}'  the  law  till  the 
contrary  is  proved,  282. 

Inquiry,  courts  of,  see  Courts  of  inquiry. 

Insanity,  absolute,  excuses  from  guilt,  118. 

Insanity  of  a  prisoner  causes  cessation  of 
proceedings,  95. 

Instruments,  written,  contents  of,  how 
proved,  268;  not  necessary  to  prove 
that  a  person  acts  in  a  public  capaci- 
ty, 274;  when  in  possession  of  the  ad- 
verse part}^,  275;  notice  to  adverse 
party  to  produce,  276. 

Intention,  must  be  specified  in  a  charge, 
55 ;  an  important  point  for  considera- 
tion in  a  charge  of  conspiracy,  290. 

Intentions,  in  criminal  matters,  presumed 
from  actions,  282. 

Intents,  when  sufficient  to  presume  one 
of  several,  205. 

Interest,  as  a  cause  of  incompetency  of  a 
witness,  234-236. 

Interpreters,  in  courts-martial,  GG;  must 
not  violate  confidence,  245. 

Intoxication  aggravates  an  offence,  118. 

Intoxication  in  a  witness,  court  must  de- 
cide on  the  fact  of,  229. 

Invalid  pleas  in  bar  of  trial,  100. 

Invasion  justifies  suspension  of  the  writ 
of  habeas  corpus,  13,  14. 

Irrelevant  questions  may  not  bo  put  on  a 
cross-examination,  307. 

Issue,  evidence  must  be  confined  to, 
283-292;  substance  of,  only  need  be 
proved,  293-300. 

Jews,  competent  as  witnesses,  231. 
Judge  advocate,  responsibility  of.  60 ;  by 
whom  appointed,  CI,  62;  should  exer- 


372 


INDEX. 


cise  the  right  of  challenge,  70 ;  cannot  I 
be  challenged,  70;  oath  administered 
by,  to  general  courts-martial,  79;  form 
of  oath  taken  by,  79 ;  oath  administer- 
ed by,  to  a  witness,  80:  absence  of, 
from  court-martial,  86 ;  essential  that 
he  should  be  sworn,  92;  trial  how 
opened  bj',  109;  assistant  of,  if  a  wit- 
ness, must  be  first  examined,  109;  re- 
ply of,  to  defence  of  prisoner,  122;  re- 
ply of,  to  rejoinder,  12:5 ;  duty  of,  during 
deliberation  by  the  court,  126;  duties 
of,  in  courts  of  inquiry,  181 ;  authority 
to  appoint,  192;  duties  of,  192,  198"; 
should  be  a  military  person,  193 ;  Mc  Ar- 
thur on  the  qualifications  of  193;  Sir 
Charles  J.  Napier  on  the  qualifications 
of,  194;  is  the  official  prosecutor,  194; 
how  far  counsel  for  the  prisoner,  195 ; 
may  be  assisted  by  counsel,  196;  must 
be  weU  informed  as  to  the  circum- 
stances of  a  case,  197;  must  summon 
witnesses,  198 ;  must  make  a  fair  copy 
of  the  record  of  proceedings.  199  ;  has 
the  right  of  reply  to  defence  of  prison- 
er, 200:  duties  of,  with  regard  to  evi- 
dence, 200 ;  liow  far  under  control  of 
the  court,  200;  is  bound  to  give  his 
opinion  to  the  court,  201 ;  must  trans- 
mit a  copy  of  proceedings  to  the  War 
Department,  202;  time  of  attendance  of, 
202 ;  duties  of,  before  courts  of  inquiry, 
203,  204;  form  of  certificate  of,  330/ 

Judgment,  pleas  in  bar  of,  117-122. 

Jurisdiction,  distinctive,  37. 

Jurisdiction,  in  what  cases  presumed  by 
the  law,  293. 

Jurisdiction  of  boards  for  retiring  dis- 
aliled  officers,  187. 

Jurisdiction  of  courts-martial,  26-38;  de- 
fined by  Congress,  7 ;  not  limited  by 
place,  299. 

Jurisdiction  of  courts  of  inquiry,  180. 

Jurisdiction  of  the  court,  pleading  to,  96. 

Jurisdictions,  accountabilit}'  to  two,  set- 
tled to  be  lawful,  102. 

Laws  of  the  land,  offences  against,  by 

ofBccrs  or  soldiers.  212. 
Leading  questions,  how  far  allowed  on 

the  examination  in  chief,  305,  306 ;  are 

allowed  on  the  cross-examination.  307  ; 

when  not  admitted,  308. 
Letters,  value  of,  as  a  proof  of  hand- 

writiufi  272. 
Liberty,  danger  to,  from  the  power  of  the 

President  to  dismiss  officers,  104. 
Limitation,  statute  of,  a  valid  plea  in  bar 

of  trial,  1 04. 
List  of  witnesses  for    the  prosecution 

usually  given  to  a  prisoner,  63,  65. 


Lunatics,  when  competent  as  witnesses, 
228. 

McArthur  on  the  qualifications  of  a  judge 
advocate,  193;  case  reported  by,  of  a 
conviction  obtained  on  the  evidence  ot 
the  complainant,  267. 

Mackenzie,  Commander,  allusion  to  the 
case  of,  197. 

Macomb,  General,  on  coints  of  inquiry, 

,    183. 

Majority  of  votes  of  a  court-martial  con- 
vict or  acquit  a  prisoner,  128,  137. 

Mahce,  a  presumption  of  law  from  injuri- 
ous actions,  282. 

ilarines,  when  officers  of,  may  be  asso- 
ciated on  courts-martial,  whh  officers 
of  land  forces,  22. 

Marshall,  Chief  Justice,  on  privilege  of 
witness  in  refusing  to  answer,  310. 

Martial  law,  how  distinguished  from  mili- 
tary law,  10;  as  defined  by  the  Duke 
of  Wellington,  1 0 ;  declared  in  Mexico 
by  General  Scott,  11 ;  in  Great  Britam 
and  the  L^nited  States,  13 ;  definition 
of,  14;  how  executed,  14. 

Mason,  Attorney-General,  opinions  of,  as 
to  the  power  of  the  President  to  miti- 
gate punishment,  156. 

Medical  officers,  when  put  in  arrest,  47 ; 
when  witnesses,  are  A\ithout  privilege, 
246. 

Meetings  of  conspirators,  conduct  at,  ad 
missible  in  evidence,  291. 

ilcmbers  of  a  court  of  inquiry,  number 
of,  180. 

^lembers  of  courts-martial,  regulations 
respecting  the  numbers  of,  22  ;  rank  of, 
25;  responsibility  of,  59;  as  witnesses. 
302. 

Memoranda  of  facts  may  be  referred  to 
by  a  witness,  110,  309,  310. 

Mental  derangement,  in  order  to  exclude 
a  witness,  must  be  proved,  228. 

Mercy,  recommendation  of  prisoner  to. 
145. 

Mexico,  martial  law  declared  in,  by  Gen- 
eral Scott,  11. 

Military  Academy,  c.ndets  of,  subject  to 
what  regulations,  9. 

Militar}^  commissions  in  Mexico,  powers 
of,  defined,  12. 

Military  commissions,  when  and  how  to 
be  constituted,  15,  powers  of,  16. 

Militarj-  law,  general  remarks  on,  7  ;  dis- 
tinguished from  martial  law,  10. 

Military  person,  may  be  jjunishcd  by 
courts-martial  for  contempts  of  court, 
31 ;  judge  advocate  must  be  a,  193. 

Militia,  when  subject  to  rules  and  articles 
of  war,  22,  28  ;  powers  of  Congress  m 


i 


INDEX 


373 


relation  to,  334,  335 ;  extracts  from  act 
of  Congress  relatiug  to,  3G1. 

Misfortune,  excuses  from  guilt,  119. 

Mitigation  of  puuislunent,  152. 

Mode  of  committing  an  offence,  how  far 
necessary  to  prove  averments  of,  296. 

Modifying  sentence  of  court-martial, 
143-1-45. 

Money,  embezzlement  of,  214-217. 

Monomaniacs,  testimony  of,  excluded, 
228. 

Motives  which  actuated  a  court  may  be 
alluded  to  in  the  sentence,  141. 

Mute  by  the  visitation  of  God,  95. 

Mute,  standing,  before  a  general  court- 
martial,  94. 

Mutilated  court-martial,  cannot  modify  a 
sentence,  144;  assembled  for  revision, 
150;  opinion  of  Attorney-General  Gush- 
ing in  relation  to,  150. 

Mutinous  conduct,  not  named  in  the  arti- 
cles of  war,  207 

Mutiny,  definition  of,  205,  20G;  begin- 
ning, exciting,  causing  and  joiniug  in, 
defined,  20G;  what  evidence  may  be 
received  to  establish  a  charge  of,  287. 

Xame  of  party  accused  must  be  specified, 
56. 

Xame  of  party  injured  must  be  proved  as 
laid,  295  ;  spelling  of  name  of,  296 ; 

Xame  of  third  person  must  be  proved,  296. 

Xapier,  Sir  Charles  J.,  on  the  qualifica- 
tions of  a  judge  advocate,  194. 

Xecessity,  inevitable,  as  an  excuse  from 
guilt,  119. 

Xegative,  proof  of,  when  not  necessary, 
274;  burden  of  proving,  lies  with 
whom,  292 ;  remarks  of  Judge  Story 
on  proving  the,  293. 

Xegroes,  competency  of,  as  witnesses, 
248-251;  opinion  of  Mr.  Key  on  the 
competency  of,  249  ;  remarks  of  the 
secretary  of  the  navy  on  the  compe- 
tency of,  250. 

New  matter  in  defence  may  be  rebutted 
by  new  evidence,  122. 

New  trial,  when  granted,  148-150. 

Xon-agreemcnt  of  witnes-ses,  319. 

Non-commissioned  officers,  can  be  re- 
duced to  the  ranks  for  certain  offences, 
40,  punishments  for,  44;  when  placed 
in  confinement,  49;  wrongs  of,  how  to 
be  redressed,  172. 

Xot  guilty  the  most  usual  plea,  108. 

Notice  to  adverse  party  to  produce  in- 
struments, 276  ;  when  dispensed  with, 
277. 

Xumber  of  members  in  courts  of  inquirj', 
180  ;  in  courts-martial,  22 


Oath,  persons  who  give  evidence  to  be 
examined  on,  or  affirmation,  80  ;  form 
of,  taken  by  a  witness,  80 ;  when  ad- 
ministered to  the  court  and  to  the 
judge  advocate,  92  ;  how  administered 
in  regimental  and  garrison  courts-mar- 
tial, 93 ;  must  be  administered  to 
boards  for  retiring  disabled  officers, 
188. 

Oaths,  77;  definition  of,  77;  should  be 
administered  witli  solemnity,  80. 

Oath  taken  by  all  the  members  of  a  court- 
martial,  7  7 ;  obligations  of,  7  8 ;  by  whom 
administered,  79. 

Objections  to  the  competency  of  a  witness, 
when  and  how  to  be  made,  303. 

Obligations  of  the  oath  taken  by  members 
of  a  court-martial,  78. 

OfTences  against  citizens,  articles  of  war 
in  relation  to,  211-213. 

Ofi'ences  and  punishment,  37—15. 

Offences,  to  be  charged  imder  what  arti- 
cles, 52,  53  ;  specifications  of,  must  be 
explicit,  54;  a  pri-soner  may  be  tried 
for  several  at  the  same  lime,  54 ;  mode 
of  committing,  how  far  necessary  to 
prove  averments  of,  296  ;  prisoner  may 
be  convicted  of  less,  but  not  of  greater, 
132,  133. 

Offences  over  which  a  general  court-mar- 
tial alone  has  cognizance,  41. 

Officers,  arrest  and  confinement  of,  46; 
what  punishments  are  applicable  to, 
43  ;  may  in  certain  cases  be  ordered  in 
arrest  by  inferiors,  48, 49 ;  limitation  of 
confinement  of,  50;  have  no  right  to 
demand  a  court-martial,  51;  commis- 
sioned, may  be  dismissed  by  the  Pres- 
ident without  trial,  161-165;  wrongs 
of,  how  redress  is  to  be  sought  for, 
170;  when  violence  to,  becomes  the 
crime  of  mutiny,  207  ;  disobedience  of, 
208;  extracts  from  act  of  Congress  re- 
lating to  trials  of,  358. 

Officers,  disabled,  boards  for  retiring, 
166-189. 

Officers,  medical,  when  put  in  arrest,  47. 

Officers,  hon-commissioned.  how  punish- 
ed, 44 ;  must  be  reduced  before  punish- 
ment in  certain  cases,  45. 

Officers,  retiring,  extracts  from  act  of 
Congress  relating  to,  361-363. 

Official  communications  may  be  privi- 
I      leged,  247. 

Onus  probandi,  upon  whom  lies  the,  292, 
293. 

Opinion  maliciously  declared,  a  good 
cause  of  challenge,  73. 

Opinion  of  judge  advocate,  must  be  given 
to  the  court,  201:  must  be  recorded, 


374 


INDEX. 


Opinions  of  experts  as  evidence,  liow  far 
entitled  to  weight,  318;  of  witnesses, 
when  receivable' in  evidence,  317. 

Order  for  convening  a  court-martial,  how 
read,  89. 

Order  of  examination  of  witnesses,  304. 

Orders,  illegal,  not  to  be  obeyed,  120. 

Palliation  of  an  offence,  evidence  in,  when 
to  be  allowed  its  effect,  133. 

Pardon,  a  valid  plea  in  bar  of  trial,  103. 

Pardoning  power,  given  to  the  President 
by  the  Constitution,  153. 

Parol  evidimce,  224. 

Pay  and  rations  of  retiring  ofiBcers,  189. 

Pay  of  a  soldier,  cannot  be  made  over  by 
a  court-martial  to  another  person,  142. 

Pay,  suspension  of,  as  punishment  of 
commissioned  officers,  39. 

Penalties  exceeding  the  power  of  the 
minor  courts-martial  to  inflict,  42. 

Persons  committing  offence,  averments 
as  to  identity  of,  297. 

Place,  jurisdiction  of  courts-martial  not 
limited  by,  299. 

Place  of  an  offence  must  be  specified  in 
a  charge,  57  ;  averments  as  to,  must  be 
laid  with  certainty,  299 

Place  of  assembly  of  a  court-martial,  83. 

Place  of  imprisonment,  not  named  in  sen- 
tence of  court-martial,  169 

Pleading  guilty,  05;  to  specifications  only, 
96;  renders  a  prisoner  a  competent 
witness  against  his  co-defendants,  238. 

Pleading  to  the  jurisdiction  of  the  court, 
96. 

Pleas  in  bar  of  judgment,  117-122. 

Pleas  in  bar  of  trial,  96-108. 

Pleas,  kinds  of,  permitted,  94;  how  to  be 
made,  108;  where  not  admitted,  108; 
must  be  recorded,  108. 

Positive  evidence,  defmiticn  of,  224. 

Positive  proof,  definition  of,  225. 

Possession  of  written  instruments  by  the 
adverse  party,  275. 

Postponement  of  trial,  application  for, 
87,  94. 

Presence  of  one  witness  not  allowed 
during  the  examination  of  another,  301. 

President  can  commute  or  mitigate  pun- 
ishment, 153,  154;  can  dismiss  a  com- 
missioned officer  without  trial,  161-165. 

President  of  a  court-martial  the  senior 
member  present,  25  ;  duties  of,  59. 

Presiding  officer  of  a  court-martial  its 
only  organ,  83. 

Presumptions  of  law,  282. 

Presumptive  evidence,  225,  279-300. 

Presumptive  proof,  definition  of,  225. 

Priest,  a  confession  made  to.  not  privi- 
leged, 240. 


Primary  evidence,  268-274. 

Principal  challenge,  what  are  causes  of, 
71. 

Prisoner  charged  with  crimes,  custody  of, 
49,  50;  court-martial  cannot  control 
the  nature  of  his  arrest,  62  ;  should  be 
furnished  with  a  copy  of  the  charges 
against  him,  62 ;  a  list  of  witnesses  for 
the  prosecution  usually  given  to.  03, 
65 ,  should  have  a  detail  of  members 
of  the  court,  64 ;  to  have  benefit  of 
counsel,  65  ;  challenges  by,  should  be 
admitted  when  practicable,  69 ;  form 
of  arraignment  of,  94;  standing  mute 
before  a  general  court-martial,  94  ;  pro- 
ceedings cease  against  when  found  to 
be  insane,  95 ;  mute  by  the  visitation 
of  God,  95 ;  address  of,  in  defence,  116; 
address  of,  may  be  read  by  his  counsel^ 
116;  allowed  to  speak  last,  124;  may 
be  convicted  of  an  offence  less  than 
the  one  charged,  but  not  of  a  greater, 
132,  133;  recommendation  of,  to  mer- 
cy, 145  ;  how  far  the  judge  advocate  is 
counsel  for.  195. 

Privileged  communications,  244—248. 

Privilege  of  witness  in  refusing  to  an- 
swer, 310-314. 

Publication  of  proceedings  of  courts-mar- 
tial, how  forbidden,  88. 

Punishment  and  offences,  37-45. 
I  Punishment,  capital,  how  inflicted,  140; 
should  be  in  presence  of  all  the  troops, 
166;    by  shooting,    166;  by  hanging, 
167. 

Punishment,  corporeal,  term  how  used, 
168. 

Punishment  for  various  offences  speci- 
fied in  the  articles. of  war,  38. 

Punishment,  previous,  a  doubtful  plea  in 
bar  of  trial,  103. 

Punishment,  votes  to  decide,  140 ;  miti- 
gation of,  152. 

Punishments  awarded  by  courts-martial, 
137. 

Punishments,  how  regulated  in  kind  and 
degree,  42 ;  when  cruel  and  when  un- 
usual, 43;  for  officers,  43;  for  non- 
commissioned officers  and  soldiers,  44 ; 
for  offences  not  enumerated,  45 ;  for 
mutiny  and  sedition,  205;  for  scntling 
a  challenge,  209;  for  embezzlement  of 
money,  214;  for  being  drunk  on  duty. 
217;  for  corresponding  with  the  ene- 
my, 220. 

Proceedings  of  courts-martial,  publica- 
tion of,  how  forbidden,  88;  records  of, 
202  ;  mode  of  recording,  325-329, 

Procession,  order  of,  at  an  execution,  166. 

Professional  confidence  must  not  be  vio- 
lated, 244. 


INDEX. 


375 


Proof  of  handwriting,  269-2'74;  of  neg- 
ative, when  not  uecessaiy,  274;  of 
acting  in  a  public  capacity,  274;  of 
writing  behig  in  possession  of  adverse 
party,  275;  wluit  circumstances  will 
amount  to,  2S1  of  principal  matter  in 
issue  is  sufficient,  294;  of  veracity  of 
witnesses,  314;  of  contradictory  state- 
ments of  witnesses,  315. 

Proof  positive  and  proof  presumptive, 
225. 

Prosecution,  when  closed,  precludes  fui'- 
ther  evidence,  115;  closing  of,  must 
be  recorded,  115;  must  precede  the  de- 
fence, 115. 

Prosecutor,  official,  the  judge  advocate, 
194. 

Protection  to  inferiors,  1 70. 

Provocation  as  an  excuse  from  guilt,  152 

Provost-marshal,  duty  of,  at  an  execution, 
167. 

Pursers,  not  eligible  as  members  of  courts- 
martial,  20. 

Questions  to  a  witness,  how  to  be  put, 
112;  when  put  by  the  court  cannot  be 
oljjected  to,  113;  immaterial,  may  be 
expimged,  114. 

Questions  which  a  prisoner  may  refuse 
to  answer,  310-314. 

Rank  of  members  of  courts-martial,  25. 

Rank,  suspension  from,  as  a  pimishment 
of  commissioned  officers,  39. 

Ranks,  nou-commissioned  officers  can  be 
reduced  to  the,  for  certain  offences,  40. 

Ramsay,  Captain,  opinion  of  the  attorney- 
general  on  the  case  of,  157. 

Reading  order  convening  a  court-martial, 
89 ;  charges  and  specitications,  89. 

Rebellion  justifies  suspension  of  the  writ 
onidbea.i  corjnt.s,  13,  14. 

Recall  of  witnesses  124. 

Recommendation  of  prisoner  to  mercy, 
145. 

Record  of  board  for  retiring  disabled  offi- 
cers, 191. 

Record  of  court  of  inquiry,  182. 

Record  of  the   proceedings  of  a  court- 
martial,  how  kept,  61) ;  must  show  that 
required  oaths  have  been  administered, 
92,  93 ;  fair  copy  of,  to  be  read  over  to  I 
the  court  at  the  finding,  125;  how  au- 
thenticated, 143;  must  be  carefully  pre-  i 
served,  161 ;  must  be  kept  by  the  judge  j 
advocate,  198  ;  in  what  manner  to  be 
kept,  199;  mode  of  making,  325-329.     j 

Records  of  courts  of  justice  are  primary  j 
evidence.  268.  i 

Redressing  wrongs,  and  appeals,  170- 1 
176.  1 


Re-examination  of  witnosses,  113;  to 
what  confined,  308. 

Refusing  to  answer,  privilege  of  witness 
in,  310-314. 

Regimental  courts-martial,  appointed  by 
whom,  18;  how  constituted,  24;  juris- 
diction of,  37  ;  have  power  to  investi- 
gate complaints  of  soldiers,  40;  mem- 
bers of,  how  sworn,  93 ;  must  be  sum- 
moned on  complaint  of  a  soldier,  170, 
172,  174,  175  ;  mode  of  proceeding  in, 
for  redress  of  wrongs,  176;  appeal  from 
decision  of,  177;  records  of  proceedings 
of,  202;  form  of  order  appointing,  324. 

Rejoinder,  permitted  to  tlio  defence,  123. 

Relevancy  of  evidence,  284. 

Remarks  on  articles  of  war,  205-223. 

Remission  of  sentence,  is  implied  in  an 
order  to  return  to  duty,  160,  168. 

Reply  of  judge  advocate  to  defence  of 
prisoner,  122,  200. 

Resignation  of  commissioned  officers,  ex- 
tract from  act  of  Congress  relating  to, 
363. 

Res[)onsiliility  of  members  of  courts- 
martial,  59 ;  of  judge  advocates,  60. 

Retainers  to  the  camp  subject  to  the  ar- 
ticles of  war,  29. 

Retiring  officers,  extracts  from  act  of  Con- 
gress relating  to,  361-363. 

Revision  of  sentence,  146;  proceedings 
in,  147 ;  causes  for,  147 ;  mutilated  court 
assembled  for,  1 50. 

Rules  and  articles  of  war,  when  adopted 
by  Congress,  8. 

Rules  of  procedure  in  military  prosecu- 
tions, 197,  202. 

Sacramentum  militare,  clings  indissolu- 
bly,  105. 

Scott,  General,  remarks  of,  respecting 
martial  law,  12. 

Search  for  documents  must  be  made  be- 
fore secondary  evidence  is  admitted, 
278. 

Secondary  evidence,  275-279;  of  the  ex- 
clusion of  266. 

Secrecj-,  members  of  a  court-martial 
sworn  to,  78;  reasons  for,  in  courts- 
martial,  79;  respecting  votes,  127. 

Secretary  of  war  has  power  to  convene 
general  courts-martial,  18,  19. 

Sedition,  205;  definition  of.  206;  what 
evidence  may  be  received  to  establish 
a  charge  of,  287. 

Sentence  by  court-martial,  137-145;  must 
bo  in  accordance  with  the  finding,  139; 
wording  of,  should  be  clear,  140 ;  mo- 
tives of  the  court  may  bo  alluded  to  in, 
141  ;  of  court-martial,  modification  of, 
133,  143-145;  revision  and  confirma- 


376 


INDEX. 


tion  of,  146-1G5;  remission  of.  implied 

in  an  order  to  return  to  duty,  160,  168 ; 

execution  of,  166-169;  form  of.  33C. 

Sentences  and  decisions  thereon,  cited  in 

illustration,  141. 
Shooting,  capital  punishment  hy,  166. 
Sickness  of  a   soldier  when  in  contine- 

ment,  168. 
Siege,  state  of,  in  continental  Europe,  10. 
Signature,   opinions   of    skilled   persons 
may  be  received  as  to  the  genuineness 
of,  273. 
Slaves,  incompetency  of,  as  witnesses,  250 
Soldiers,    punishments    for,    44;    when 
placed  in  confinement,  4  9 ;  wrongs  of, 
how  redress  is  to  be  sought  for,  172. 
Special  pleas  in  bar  of  trial,  97. 
Special  verdict,  may  be  found  by  a  court- 
martial,  129 ;  cases  in  illustration  of, 
129-132. 
Specification,  definition  of  a,  52  ;  want  of, 

as  a  plea  in  bar  of  trial,  106,  107. 
Specifications  to  a  charge,  how  to  be  made, 
54-58  ;  must  be  certain  as  to  the  party 
accused  and  the  party  injured,  56 ,  to 
be  read  before  the  court.  89  ;  efi'ect  of 
a  prisoner  pleading  guilty  to,  96;  forms 
of,  under  different  articles  of  war,  331- 
333. 
Spelling  of  names,  correctness  of,  how 

far  important,  296. 
Spies,  to  be  tried  by  military  courts,  30; 
extract  from  act  of  Congress  relating 
to,  363. 
Standing  mute  before  a  general   court- 
martial,  94. 
State  of  siege  in  continental  Europe,  10. 
Statute  of  limitation,  a  valid  plea  in  bar 
of  trial,   104;  not  applicable  to  courts 
of  inquirj-,  183  ;  not  applicable  to  boards 
for  retiring  disabled  officers,  190. 
Story,  Justice,  opinion  of,  as  to  the  num- 
ber of  members   of  a   general  court- 
martial,  24. 
Striking  a  superior  officer,  when  the  crime 

of  mutiny.  207. 
Successor  to  an  officer  ordering  a  court- 
martial,  powers  of,   ]  60. 
Summoning  witnesses,  provision  respect- 
ing, 64 ;  the  duty  of  the  judge-advo- 
cate, 198. 
Supernumeraries,  when  to  be  appointed  on 
general  courts-martial,    24;    liable  to 
be  challenged,    76;    must  be   present 
throughout  the  session,  85. 
Supreme  Court,  relation  of,  to  courts-mar- 
tial, 60. 
Surgeons,    not  eligible  as  members   of 
courts-martial,   19,20;  may  remain  in 
court  during  the  examination  of  wit- 
nesses, 301. 


Sur-rejoinder,  allowed  to  prosecution,  123. 
Suspension  of   pay  and  emolument   of 

officers,  as  a  punishment.  39. 
Sutlers,  subject  to  the  article  of  war,  29; 

extract  from  act  of  Congress  relating 

to,  363. 
Sword,  depriving  an  officer  of,  when  in 

arrest,  47. 

Terra  of  service,  jurisdiction  of  courts- 
martial  after  expiration  of,  32. 

Testimony  conflicting,  of  witnesses,  319. 

Testimony  given  on  a  former  trial,  how 
to  be  received,  256. 

Threats,  how  far  an  excuse  from  guilt. 
121. 

Time,  averments  as  to,  rule  of  proof  fur, 
298. 

Time  of  an  ofi'ence  must  be  specified  in 
the  charge,  57,  58. 

Time  of  assembling  a  court-martial,  83. 

Time  of  attendance  of  members  of  courts- 
martial,  how  certified,  202. 

Time  of  imprisonment,  how  calculated. 
169. 

Treason,  what  constitutes,  334. 

Trenor,  Captain,  charge  and  specifications 
against,  58. 

Trial  before  court-martial,  59-67 ;  appli- 
cation for  delay  or  postponement  of,  87- 
94;  pleas  in  bar  of,  96-108.  special 
pleas  in  bar  of  97 ;  invahd  pleas  in 
bar  of,  100  ;  incidents  of  the,  88-124 ; 
how  opened  by  the  judge  advocate. 
109;  new,  when  granted,  148-150. 

Trial  of  officers,  extracts  from  act  of  Con- 
gress relating  to,  359. 

Trials,  extract  from  a  general  order  in  re- 
lation to,  90. 

Trials,  several,  court  to  be  sworn  at  the 
commencement  of  each,  93. 

T3-tlcr  on  the  duties  of  a  judge  advocate, 
200. 

Understanding,  defect  of,  renders  a  wit- 
ness incompetent,  227. 

Van  Bokkehn,  Captain,  case  of,  99. 

Veracity  of  witncsftes,  proof  of,  314. 

Verbal  declarations,  how  far  admissible 
in  evidence,  252. 

Verdict  of  a  court-martial,  1 29 ;  special, 
129;  cases  in  illustration  of,  129-132. 

Verdict,  separate,  one  of  several  defend- 
ants may  be  rendered  competent  as  a 
witness  by,  237-  case  in  illustration, 
on  the  authority  of  Lord  Erskine,  237. 

Voir  dire,  examination  of  a  witness  upon 
the,  when  his  competency  is  objected 
to,  303,  304. 

Votes  at  the  finding,  memorandum  of, 


[XDEX. 


377 


must  be  destroyed,  121,  majority  of, 
determine  acquittal  or  conviction,  128, 
137  ,  how  submitted  to  the  court,  136. 

Votes,  question-  in  courts-martial  decided 
by  a  majority  of,  84 ;  wlicn  equally  di- 
vided acquit  the  prisoner,  129  ;  to  de- 
cide punishment,  140. 

Voting  at  the  finding  by  a  court-martial, 
126. 

"Waiving  plea  in  bar  of  trial,  by  iho  ac- 
cused, 106. 

Walker,  William,  decision  of  the  Supreme 
Court  of  Massachusetts  in  the  case  of, 
34 ;  tried  by  court-martial  after  expi- 
ration of  his  term  of  service,  35. 

Want  of  specification  as  a  plea  in  bar  of 
trial,  106,  107. 

Warrant  for  assembling  a  court-martial 
by  whom  issued,  18. 

Wellington,  Duke  of,  martial  law  defined 
by,  10;  martial  law  as  administered 
by,  11. 

Wliistler,  Major,  opinion  of  the  attorney- 
general  on  the  case  of,  153. 

Wife,  testimony  of,  for  or  against  her  hus- 
band, when  not  admitted,  239-241; 
■when  admitted,  241. 

WQliamson,  Peter,  case  of,  143. 

Will,  vicious,  necessary  to  coustitute  a 
crime,  117. 

Wirt,  Attorney-General,  opinion  of,  on  the 
power  of  the  secretary  of  war  to  con- 
vene general  courts-martial,  10;  opin- 
ion of,  in  relation  to  former  arrest  as 
a  bar  of  trial,  100  ;  opmiou  of,  in  rela- 
tion to  prisoner's  waiving  his  plea  in 
bar  of  trial,  106;  opinion  of,  in  relation 
to  the  power  of  the  President  to  grant 
a  new  trial,  149;  opinion  of,  in  rela- 
tion to  the  power  of  tlie  President  to 
mitigate  piuiishment,  155. 

Witness,  form  of  oath  taken  by,  80;  sworn 
by  the  judge  advocate,  80  ;  liable  to  ar- 
rest on  refusing  to  be  sworn,  80  ;  sworn 
but  once,  81 ;  delay  of  trial  for  absence 
of,  87  ;  objection  to  competency  of, 
when  to  be  made,  109 ;  must  be  sworn 
by  the  judge  advocate,  1 09 ;  how  ex- 
amined, 1 09 ;  may  refer  to  a  memo- 
randum of  facts,  110,309;   illness  of. 


110;  deposition  of  may  be  taken  when 
a  civilian,  HI;  compulsory  attendance 
of,  111;  questions  to,  112;  question 
put  to,  by  the  court,  113;  examination 
of,  113  ;  may  explain  his  evidence,  113 ; 
record  of  his  evidence  may  be  read  to 
him  before  ho  leaves  the  court,  114; 
may  be  subjected  to  cross-exammation, 
114. 

Witnesses,  list  of,  to  be  given  to  a  pris- 
oner, 63,  65  ;  provision  as  to  summon- 
ing, 64;  when  called  in,  108;  recall 
of,  124;  improper  conduct  of,  134; 
courts  of  inquiry  have  power  to  sum- 
mon, 182;  boards  for  retiring  dis- 
abled officers  may  simimon,  188;  in- 
competency of,  226-235;  incompetency 
of,  from  defect  of  religious  principle, 
230  ;  not  Christians,  may  bo  admitted, 
231 ;  negroes  as,  248-251 ;  slaves  can- 
not be,  250;  examination  of,  300-306; 
cross-examination  of,  306-308  ;  re- 
examination of,  308;  privilege  of,  m  re- 
fusing to  answer,  310-314  ;  credibility 
of,  how  impeached,  315;  contradiction 
of,  by  party  calling,  316,  belief  of.  re- 
ceivable in  evidence,  316  ;  opinions  of, 
317;  conflicting  testimony  of,  319. 

Wording  of  a  sentence  should  be  clear, 
140. 

Written  declarations,  how  far  admissible 
in  evidence,  252. 

Written  evidence,  224. 

A\^ritten  instruments,  contents  of,  how 
proved,  268  •  not  necessary  to  prove 
that  a  person  acts  in  a  pubhc  capacity, 
274;  when  in  possession  of  the  ad- 
verso  party,  275. 

Writings,  ancient,  value  of,  in  establish- 
ing identity  of  handwriting,  273. 

Writings,  destroyed,  secondary  evidence 
admissible  of,  278. 

Writings  relating  to  a  conspiracy,  when 
admissible  in  evidence,  290. 

Wrongs,  history  of  the  article  of  war  in 
relation  to,  172;  nature  of,  referred  to 
in  the  35th  article  of  war,  173 ;  redress 
for,  how  to  be  obtained,  174. 

Wrongs  of  officers,  redress  for,  170;  of 
non-commissioned  officers  and  soldiers, 
redress  for,  172. 


D.  Van  N'ostrand''s  Puhlkations. 


Scott's  Military  Dictionary. 

ComprLsing  Technical  Defiiiiiious;  lufornuitioii  ou  Kuising  and 
Keeping  Troops ;  Actual  Service,  including  makeshifts  and 
improved  materiel,  and  Law,  Government,  Regulation,  and 
Administration  relating  to  Land  Forces.  By  Colonel  H.  L. 
Scott,  Inspector-General  U.  S.  A.  1  vol.,  large  octavo,  fully 
illustrated,  half  morocco.     §5. 


of  Military  Science."— Phihiddphia  Eien- 
logitiinate  praise  of  this  work." — Kationul 


'•  It  is  a  complete  Encycluj);v( 
ing  Bull  I  tin. 

'•We  oaiinot  speak  too  much 
JiiteUi(/eiicer. 

'■  It  sho'ihl  be  made  a  Text-book  lor  the  study  of  every  Volunteer."— //(//•- 
prr'ti  Jluycizine. 

"  We  cordially  comir.end  it  to  public  favor." — Wai>?iington  Glohe. 

"Tills  comprehensive  and  skilfully  prepared  work  supplies  a  want  that  has 
lont;  been  felt,  and  will  be  peculi.arly  valuable  at  this  time  as  a  book  of  refer- 
ence " — BoxtoH  Comiiiercial  Bulletin. 

"The  Military  Dictionary  is  splendidly  got  up  in  every  way,  and  reflects 
credit  on  the  publisher.  The  oUicers  of  every  company  in  the  service  should 
possess  it."— jN'.  1'-  Tahlet. 

"The  work  is  mo -e  properly  a  Military  Encyclopa?dia,  and  is  profusely  illus- 
trated with  engravings.  It  appears  to  contain  every  thing  that  can  be  wanted 
in  the  shape  of  information  by  officers  of  all  grades." — Philadelphia  North 
American. 

"This  book  is  really  an  T^iryr!  .;!  i  !i  i.  1  ill,  .lementary  and  te'chnical,  and 
as  such  occupies  a  gap  iu  Mich  has  long  been  mo.-t  incon- 

veniently vacant.    Thisli'  I   'pular  want,  and  will  bo  secured 

niit  only  by  those  embarkin  .  ii  i  .'  i:  I  i-  i  '■  )t  by  a  great  number  of  civilians, 
who  are  determined  to  follou-  the  <le>eripti()iis  and  to  understand  the  philo.-o- 
phy  of  the  various  movements  of  the  campaign.  Indeed,  no  tolerably  good 
library  would  be  compl -te  without  the  work." — Xric  York  Tinwu. 

"The  work  has  evidently  been  compiled  from  a  careful  consultation  of  the 
best  authorities,  enriched  with  the  results  of  the  experience  and  perso  al 
knowledge  of  the  author."— iV.  Y  Daily  Tribune. 

"  Works  like  the  present  are  Invalu.iblft.  The  officers  nf  our  VoluntcT  ser- 
vice would  all  do  well  to  possess  themselves  of  the  \olume." — ^V,  Y.  Herald. 


New   Bayonet  Exercise. 

A  New  Manual  of  the  Bayonet,  for  tlie  Army  and  Militia  of  the  L'^nited 
States.  By  Colonel  J.  C.  Kklto.v,  U.  S.  A.  With  thirty 
beautifully-engraved  plates.     Red  cloth.    §;1.7o. 

This  Manual  was  prepared  for  the  use  of  the  Corps  of  Cadets,  and  has  been 
introdueed  at  the  Military  .Academy  with  satisfaetoy  result.s.  It  is  simply  ihe 
theory  of  the  attack  anddefence  of  the  sword  applied  to  the  bayonet,  on  the 
autliority  of  men  skilled  in  the  use  of  arms. 

The  -Manual  contains  practical  lessons  in  Foncinsr,  and  prescribes  the  de- 
fence against  Cavalry  and  the  manner  of  conducting  a  contest  with  a  Swords- 
man. 

"This  work  merits  a  favorable  reception  at  the  hands  of  all  military  men. 
It  contains  all  the  instruction  necessary  to  enable  an  oflicer  to  drill  his  men  in 
the  use  of  this  weapon.  The  introiluction  of  the  Sabre  Bayonet  in  our  Army 
renders  a  knowledge  of  the  exercise  more  imperative." — iVtto  York  Times. 


J).  Van  Nostrand'' s  Publications. 


Rifles  and  Rifle   Practice. 

An  Elementary  Treatise  on  tlio  Tlieorj-  of  Ritle  Firing ;  explain- 
ing the  causes  of  Inaccuiacy  of  Fire  and  the  manner  of  cor- 
recting it;  with  descriptions  of  the  Infantry  Rifles  of  Europe 
and  the  United  States,  their  Balls  and  Cartridges.  By  Capt. 
C.  M.  Wilcox,  TJ.  S.  A.  New  edition,  with  engravings  and 
cuts.     Green  cloth.     §;1.7o. 

"Although  eminently  a  scientific  work,  Sfiecial  care  seems  to  have  been 
taken  to  avoid  the  use  of  technical  terms,  and  to  make  the  whole  subject  readily 
comprehensible  to  the  practical  enquirer.  It  was  designed  chieHy  for  the 
use  of  Volunteers  and  Militia;  but  the  War  Department  has  evinced  its  ap- 
proval of  its  merits  by  ordering  from  the  publisher  one  thousand  copies,  for  the 
use  of  the  United  States  Army:'— Louisville  Journal. 

"The  book  will  be  found  intensely  interesting  to  all  who  are  watching  the 
changes  in  the  art  of  war  arising  from  the  introduction  of  the  new  rifled  arms. 
We  recommend  to  our  readers  to  buy  the  book.'''-— JHUtary  Gazette. 

'■  A  most  valuable  treatise."— A'ew  York  Ilerald. 

"This  book  is  quite  original  in  its  character.  That  character  is  complete- 
ness. It  renders  a  study  of  most  of  the  works  on  the  rifle  that  have  been 
published  quite  unnecessary.  We  cordially  recommend  the  book." — United 
Service  Gazette,  London. 

"The  work  being  in  all  its  parts  derived  from  the  best  sources,  is  of  the 
highest  authority,  and  will  be  accepted  as  the  standard  on  the  subject  of  which 
it  treats."— AV.z«  Yorker. 


Army  Officer's  Pocket  Companion. 

Principally  designed  for  Staff  Officers  in  the  Field.  Partly  trans- 
lated from  the  French  of  M.  de  Rouvre,  Lieutenant-Colonel 
of  the  French  Staff  Corps,  with  Additions  from  Standard  Amer- 
ican, French,  and  English  Authorities.  By  Wm.  P.  Craiohill, 
First  Lieutenant  U.  S.  Corps  of  Engineers,  Assist.  Prof,  of 
Engineering  at  the  U.  S.  Military  Academy,  West  Point. 
1  vol.  18mo.     Full  roan.     $1.50. 

"  I  have  carefully  examined  Capt.  Craighill's  Pocket  Companion.  I  find 
it  one  of  the  very  best  works  of  the  kind  I  have  ever  seen.  Any  .\rmy  or 
Volunteer  officer  who  will  make  himself  acquainted  with  the  contents  of  this 
little  book,  will  seldom  be  ignorant  of  his  duties  in  camp  or  field." 

11.  W.  IIALLFXK, 
Major-General  U.  S.  A. 
"  I  have  carefully  examined  the  '  Manu.i!  for  St:ilf  OlUccrs  in  the  Field."     It 
is  a  mo.sl  invaluabje  work,  admirable  in  arranL'ement,  perspicuously  written, 
abounding  in  most  useful  matters,  and  such  a  book  as  should  be  the  constant 
pocket  companion  of  every  armv  officer.  Regular  and  Volunteer." 

G.  W.  CULLUM, 
Brig.idior-General  U.  S.  A. 
Chief  of  General  Halleek's  St.-iff, 
Chef  Engineer  Department  Mississipjn. 
"This  little  volume  contains  a  large  amount  of  indispensable  Information 
relitins  to  otticers"  duties  in  the  siege,  camp,  apd  fiild.  and  will  prove  to  them 
a  iiio-t  valuaMe  iiocket  companion.     It  is  illustrated  with  plans  and  drawings." 
— Botston  Com.  Bulletin. 


D.  Van  Nostrand^s  Publications. 


A  Treatifc  on  Ordnance  and  Naval 
Gunnery. 

Compiled  and  arraiiu'od  as  a  Text-Book  for  the  U.  S.  Naval  Acad- 
emy, by  Lieutenant  Edward  Simpson,  IT.  S.  N.  Second  edi- 
tion, revised  and  enlarged.  1  vol.  8vo,  plates  and  cuts,  half 
morocco.     $1. 

".Vs  tlie  coinpilor  lias  cliar!;c  of  tlio  iiiPtniotion  in  Naval  Gunnery  at  tho 
Naval  Acaiieiny,  his  woi  k,  in  the  c()in|)ilation  of  which  he  has  Cdnsultod  a  larjre 
number  of  eminent  authorilit's,  is  probably  well  suited  for  tlie)iurp()se<iesi!.'ned 
by  it— namely,  the  lirciilation  of  information  which  many  ollieers,  owin?  to 
ci)nst;xnt  service  afloat,  may  not  have  been  able  to  collect,  "in  simple  and  plain 
lansuaireit  pives  instruction  as  to  cannon,  o:un  carriages,  crun  powder,  projectiles, 
fuzes,  locks,  and  i)iimers;  the  theory  ofpointinfr  sruns,  rifles,  the  practice  of 
^iUuu'Ty,  and  a  great  vaiirty  of  other  siiii  lar  matters,  interesting  to  fighting 
men  on  sea  and  land." —  W anhington  Daily  Globe. 

"  A  vast  amount  of  inform.ation  is  conveyed  in  a  readable  and  familiar  form. 
The  illustrations  are  c.Ncellent,  and  many  of  them  unique,  being  colored  or 
bionz  d  so  as  lo  represent  various  military  arms,  &c.,  with  more  than  photo- 
graphic literalness." — Washington  Star. 

"It  13  scarcely  necessary  for  us  to  say  that  a  work  prepared  by  a  writer  .so 
practically  conversant  with  all  the  subjects  of  which  he  treats,  and  who  has  such 
a  reputation  for  scientific  ability,  cannot  fail  to  take  at  once  a  high  place  among 
the  text-books  of  our  naval  .service.  It  lias  been  approved  by  the  Secretary  of 
the  Nrtvy,  and  will  henceforth  be  one  of  the  .standard  authorities  on  all  matters 
connected  with  Naval  Gunnery.'" — Keic  York  Herdld. 

"The  book  itself  is  admirably  arranged,  char.acterized  by  great  simplicity 
and  clearness,  and  certainly  at  this  time  will  be  a  most  valuable  one  to  officers 
of  the  Navy.'' — Bonion  Coini/iercial  BuUetin. 

"Originally  designed  as  a  text-book,  it  is  now  enlarged,  and  so  far  modified 
in  its  plan  as  to  make  it  an  invaluable  hand-book  for  the  naval  oflicer.  It  is 
comprehensive— preserving  the  creain  of  many  of  the  best  books  on  ordnance 
and  naval  gunnery,  and  is  printed  and  illustrated  in  the  most  admirable  man- 
ner."—.A'eic  York  World. 


Elementary    Inftruction     in    Naval 
Ordnance  and   Gunnery. 

By  James  II.  Warp,  Commander  U.  S.  Xavy,  Author  of  "  X.ival 
Tactics,"  and  "Steam  for  the  Million."  New  edition,  revised 
and  enlarged.     8vo.     Cloth,  §2. 

"  It  conveys  an  amonnt  of  information  in  the  same  space  to  be  found  no- 
w  hero  else,  and  given  with  a  clearness  which  renders  it  useful  as  well  to  tho 
general  as  the  professional  inquirer." — N.  Y.  Evening  Post. 

"  This  volnme  is  a  standard  treatise  upon  the  subject  to  which  it  is  devoted. 
It  abounds  in  valuable  information  upon  all  the  jioints  bearing  upon  Naval 
Gunnery."— Al  Y.  Commercial  A'Jver(i.ier. 


"Tho  work  is  an  exceedingly  valuable  one,  and 
Boston  Journal. 


jpportunely  issued.' 


12  D.  Van  NostramVs  Publications. 

Notes  on   Sea-Coafl:  Defence  : 

Consisting  of  Sea-Coast  Fortification  ;  the  Fifteen-Inch  Gun ;  and 
Casemate  Embrasures,  By  Gen.  J.  G.  Barnard,  Corps  of 
Engineers,  U.  S.  Army.     1  vol.  8vo,  cloth,  plates.    $1  50. 

"This  small  volume  by  one  of  the  most  accomplished  officers  in  the  United 
States  service  is  especially  valuable  at  this  time.  Concisely  and  thonuifrhlv 
Major  Barnard  discusses  tlie  subjects  included  in  this  volume,  and  eives  infof- 
m.lion  that  will  be  rend  with  great  profit  by  military  men,  and  by  all  interested 
in  the  art  of  war  as  a  defensive  foi-ce'"— iVe«c  York  Commercial. 

"  It  is  no  lisrht  compliment  when  we  say  that  Major  Barnard's  book  docs  no 
discredit  to  the  corps  to  which  he  belonss.  He  writes  conciselv,  and  with  a 
thorough  knowledj,'e  of  his  subject."— /?u*'.v<'/rs  Ar^ny  and  Nary  Gazette. 


Inftructions     for    Nav^al     Light 
Artillery, 

Afloat  and  Ashore.      By  Liont.  S.  B.  LrcE,  U.  S.  N".     1  vol.  8to, 
with  22  lithographic  plates.     In  Press. 


Steam   for  the  Million. 

A  Popular  Treatise  on  Steam  and  its  Application  to  the  U.«cful 

Arts,  especially  to  Navigation.     By  J.  H.  Ward,   Commander 

IT.  S.  Navy.     New  and  revised  edition.     1  vol.  8vo,  cloth. 

"A  most  excellent  work  for  the  young  engineer  and  general  reader.  Many 
facts  relating  to  1  he  management  of  the  boilei-  and  engine  are  set  forth  with  a 
simplicity  of  language,  and  perfection  of  detail,  that  brings  the  subject  home  to 
the  reader.  Mr.  Ward  is  alsj  peculiarly  happy  in  his  illustrations."— .^me/'ica?* 
£ngiiieer. 


Screw  Propulfion. 


Notes  on  Screw  Propulsion,  its  Rise  and  History.     By  Capt.  W.  H. 
Walker,  U.  S.  Navy.     1  vol.  8vo.,  cloth.     75  cents. 

Some  interesting  notes 
been  issued  by  (.'ouimande 
likely  to  be  desired  on  the  subject  maybe  readily  acquired.  •  «  *  *  After 
thoroughly  demonstrating  the'efficiency  of  the  screw,  Mr.  Walker,  proceeds  to 
point  out  the  various  other  points  to  be  attended  to  in  order  to  secure  an  effi- 
cient man-of-war.  and  eulogizes  throughout  the  readiness  of  the  British  Admi- 
ralty to  test  every  novelty  caUulated  to  give  satisfactory  results.  •  *  *  * 
Conimander  Walker's  book  contains  an  immense  amount  of  concise  practical 
data,  and  every  item  of  information  recorded  fully  proves  that  the  various 
points  bearing  upon  it  have  been  well  considered  previously  to  expressing  an 
opinion."— io«rfo»  Mining  Journal. 

"  Every  engineer  should  have  it  in  his  library." — American  Engineer. 


D.  V 


JVbstrand^s  JPublications. 


Hand- Book  of  Artillery, 

For  the  Service  of  the  United  States  Army  and  Militia.     New  and 

revised  edition.     By  Maj.  Joseph  KoiiKRTS,  U.  S.  A.     1  vol. 

18mo,  cloth  flexible.     75  cents. 

"  A  complete  catechism  of  pun  practice,  covering  the  ■whole  ground  of  this 
branch  of  military  science,  and  adapted  to  militia  and  volunteer  drill,  as  well  as 
to  tlie  regular  army.  It  has  the  merit  of  precise  detail,  even  to  the  technical 
names  of  all  parts  of  a  gun,  and  how  the  sm.allest  operations  connected  with  its 
use  can  be  best  performed.  It  h;is  evidently  been  prepared  with  great  care, 
and  with  strict  scientific  accuracy.  By  the  recommendation  of  a  committee 
appointed  bv  the  commanding  officer  of  ♦,>ie  Artillery  School  at  Fort  Monroe, 
Va.,  it  has  been  substituted  for  '  Burns' Questions  and  Answers,' an  English 
work  which  has  heretofore  been  the  text-book  of  instruction  in  this  country." 
— A'ew  York  Century. 


New   Infantry  Tactics, 

For  the  Instruction,  Exercise,  and  Manoeuvres  of  the  Soldier,  a  Com- 
pan}'.  Line  of  Skirmishers,  Battalion,  Brigade,  or  Corps  d'Armee. 
By  Brig. -Gen.  Silas  Casev,  U.  S.  A.     3  vols.  2-lnio.     Half  roan, 
lithographed  plates.     $2.50. 
Vol.  I. — School  of  the  Soldier ;    School  of  the  Company  ;    In- 
struction for  Skirmi.shers. 
Vol.  II.— School  of  the  Battalion. 

Vol.  III. — Evolutions  of   a  Brigade ;    Evolutions   of   a    Corps 
d'Armee. 

The  manuscript  of  this  new  system  of  Infantry  Tactics  was  carefully  ex- 
amined by  General  McClei.lan,  and  met  with  his  unqualitied  approval,  which 
he  has  since  manifested  by  authorizing  General  Casey  to  adopt  it  for  his  entire 
division.  The  author  has  retained  much  that  is  valuable  contained  in  the  sys- 
tems of  Scott  and  Hardee,  but  has  made  many  important  changes  and  addi- 
tions which  experience  and  the  exigencies  of  the  service  require.  General 
Casey's  reputation  as  an  accomplished  soldier  and  skilful  tactician  is  a  guar- 
antee that  the  work  he  has  undertaken  has  been  thoroughly  performed. 

"These  volumes  are  ba-^ed  on  the  French  ordonnances  of  1S31  and  1845  for 
the  niancDUvrcs  of  heavy  infantry  and  channeura  d  pied  ;  both  of  these  systems 
have  beun  in  u.se  in  our  service  for  some  years,  the  former  having  been  trans- 
lated by  Gen.  Scott,  and  the  latter  by  Col.  Hardee.  After  the  introduction  of 
the  latter  drill  in  our  service,  in  connection  with  Gen.  Scott's  Tactics,  there 
arose  the  necessity  of  a  uniform  system  for  the  manfeuvres  of  all  the  infantry 
arm  of  the  service.  The.se  volumes  are  the  result  of  the  author's  endeavor  to 
communicate  the  instruction,  now  used  and  adopted  in  the  army,  to  achieve 
this  result." — Boston  Journal. 

"  Based  on  the  best  precedents,  adopted  to  the  novel  requirements  of  the  art 
of  war,  and  very  full  in  its  instructions,  Casey's  Tactics  will  be  received  as  the 
most  useful  and  most  comprehensive  work  of  its  kind  in  our  lansuago.  From 
the  drill  and  discipline  of  the  individual  soldier,  or  through  all  the  various 
combinations,  to  the  manceuvres  of  a  brigade  and  the  evolutions  of  a  Corps 
D'Armee,  the  student  is  advanced  by  a  clear  method  and  steady  progress.  Nu- 
merous cuts,  plans,  and  diagrams  illustrate  positions  and  movements,  and  de- 
monstrate to  the  eye  the  exact  working  out  of  the  individual  position,  brigading, 
order  of  battle,  &.C,  &c  The  work  is  a  model  of  publishing  success,  being  Ui 
three  neat  pocket  yo\umes."—yew  Yorker. 


D.  Yan  NostrancVs  Publications. 


Evolutions  of  Field   Batteries  of 


Artillery. 


Translated  from  the  French,  and  arranged  for  the  Army  and  Militia 
of  the  United  States.  By  Gen.  Robert  Anderson,  U.  S.  Army. 
Published  by  order  of  the  War  Department.  1  vol.  cloth,  32 
plates.    $1. 

War  Department,  JWw.  2d,  1859. 
The  System  of  "Evolutions  of  Field  Batteries,"  translated  from  the  French, 
and  un-LUiired  for  the  service  of  the  United  States,  by  Major  Eobert  Anderson, 
of  the  l>t  i;esiiiient  of  Artillery,  having  been  approved  by  the  President,  is 
published  fir  thL-  information  and  government  of  the  army. 

All  EviiUitions  of  Field  Batteries  not  embraced  in  this  system  are  prohibited, 
and  those  herein  prescribed  will  be  strictly  observed. 

■j.  B.  FLOYD,  Secretary  of  War. 
"This  system  having  been  adopted  by  the  War  Department,  is  to  the  artil- 
lerist wh.at  llurdee's  Tactics  is  to  the  infantry  soldier;  the  want  of  a  work  like 
this  has  been  seriously  felt,  and  will  be  eagerly  welcomed."— ZowMwWe  Jownal. 


Hiftory  of  the  United  States  Naval 
Academy, 

With  Biographical  Sketches,  and  the  names  of  all  the  Superintendents, 
Professors  and  Graduates,  to  which  is  added  a  Record  of  some 
of  the  earhest  Votes  by  CongTess,  of  Thanks,  Medals  and  Swords 
to  Naval  Officers.  By  Edward  Ciiauxcet  Marshall,  A.  M., 
formerly  Instructor  in  Captain  Kinsley's  }*Iilitarr  School  at  West 
Point,  Assistant  Professor  in  the  N.  Y.  University,  etc. 


Ordnance  and  Gunnery. 

A  Course  of  Instruction  in  Ordnance  and  Gunnery.  Compiled  for 
the  Use  of  the  Cadets  of  the  United  States  Military  Academy. 
By  Captain  J.  G.  Benton,  Ordnance  Department  U.  S.  A.,  late 
Instructor  of  Ordnance  and  the  Science  of  Gunnery,  U.  S.  Mili- 
tary Academy,  West  Point,  and  First  Assistant  to  the  Chief 
of  Ordnance,  U.  S.  A.  Second  edition,  revised  and  enlarged. 
1  vol.  8vo,  half  morocco,  $4. 

Capt.  Benton  hiis  carefully  revised  and  corrected  this  valuable  work  on  Ord- 
nance and  Gunnery,  the  first  edition  of  which  was  published  only  about  a  year 
ago.  The  many  important  improvements  introduced  in  this  branch  of  the  service 
have  rendered  such  a  revision  neces.sary.  The  present  edition  will  be  invalua- 
ble, not  only  to  the  student,  but  as  a  standard  book  of  reference  on  the  subject 
of  which  it  treats. 


I 


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